Whether the Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (“the Commission Act”, for short) are ultra vires. ? the Division Bench of the High Court1 dismissing A.S.T. No.192 of 2014 and other connected matters and thereby affirming the decision of the Single Judge of the High Court passed on 12.03.2014 in Writ Petition No.20650 (W) of 2013 which in turn had found Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (“the Commission Act”, for short) to be ultra vires Apex court held that We are aware that in Brahmo Samaj Education Society24 , Sindhi Education Society7 and Chandana Das (Malakar)33 , decided after TMA Pai Foundation8 , this Court had also dealt with the question whether the concerned authorities could validly nominate teachers to be appointed in minority educational institutions. Brahmo Samaj Education Society24 did not specifically deal with the question whether rules were valid or not and left it to the authorities to bring the rules and regulations in conformity with the principles in TMA Pai Foundation8 case. Sindhi Education Society7 dealt with the issue in the context of reservation. It also found that the teachers nominated by the concerned authorities would not be compatible to teach in educational institutions run by linguistic minorities. In Chandana Das (Malakar)33 the basic issue was whether the concerned institution was a minority institution or not. Sindhi Education Society7 and Chandana Das (Malakar)33 dealt with statutory regimes which did not have any special features or matters concerning compatibility of teachers Civil Appeal No.5808 of 2017 SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others 150 which could be required going by the special characteristics of the minority educational institutions. However, the additional feature in the present matter shows that the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of and thus the present case stands on a different footing. We, therefore, have no hesitation in going by the test culled out in the TMA Pai Foundation8 and hold that the provisions of the Commission Act are not violative of the rights of the minority educational institutions on any count. 57. In the premises, while allowing these appeals, we set aside the view taken by the Single Judge and the Division Bench of the High Court and dismiss Writ Petition No.20650(W) of 2013 and other connected matters. We also hold Sections 8, 10, 11 and 12 of the Commission Act to be valid and constitutional. 58. In the end, we declare all nominations made by the Commission in pursuance of the provisions of the Commission Act to be valid and Civil Appeal No.5808 of 2017 SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others 151 operative. However, if after the disposal of the matters by the High Court any appointments are made by the concerned Madarshas, such appointments of teachers shall be deemed to be valid for all purposes. But the Commission shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act and the Rules framed thereunder.

 Whether the Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (“the Commission Act”, for short) are ultra vires. ?

 the Division Bench of the High Court1 dismissing A.S.T. No.192 of 2014 and other connected matters and thereby affirming the decision of the Single Judge of the High Court passed on 12.03.2014 in Writ Petition No.20650 (W) of 2013 which in turn had found Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008 (“the Commission Act”, for short) to be ultra vires
Apex court held that

We are aware that in Brahmo Samaj Education Society24 , Sindhi Education Society7 and Chandana Das (Malakar)33 , decided after TMA Pai Foundation8 , this Court had also dealt with the question whether the concerned authorities could validly nominate teachers to be appointed in minority educational institutions. Brahmo Samaj Education Society24 did not specifically deal with the question whether rules were valid or not and left it to the authorities to bring the rules and regulations in conformity with the principles in TMA Pai Foundation8 case. Sindhi Education Society7 dealt with the issue in the context of reservation. It also found that the teachers nominated by the concerned authorities would not be compatible to teach in educational institutions run by linguistic minorities. In Chandana Das (Malakar)33 the basic issue was whether the concerned institution was a minority institution or not. Sindhi Education Society7 and Chandana Das (Malakar)33 dealt with statutory regimes which did not have any special features or matters concerning compatibility of teachers Civil Appeal No.5808 of 2017 SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others 150 which could be required going by the special characteristics of the minority educational institutions. However, the additional feature in the present matter shows that the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of and thus the present case stands on a different footing. We, therefore, have no hesitation in going by the test culled out in the TMA Pai Foundation8 and hold that the provisions of the Commission Act are not violative of the rights of the minority educational institutions on any count. 57. In the premises, while allowing these appeals, we set aside the view taken by the Single Judge and the Division Bench of the High Court and dismiss Writ Petition No.20650(W) of 2013 and other connected matters. We also hold Sections 8, 10, 11 and 12 of the Commission Act to be valid and constitutional. 58. In the end, we declare all nominations made by the Commission in pursuance of the provisions of the Commission Act to be valid and Civil Appeal No.5808 of 2017 SK. MD. Rafique vs. Managing Committee, contai Rahamania High Madrasah and Others 151 operative. However, if after the disposal of the matters by the High Court any appointments are made by the concerned Madarshas, such appointments of teachers shall be deemed to be valid for all purposes. But the Commission shall hereafter be competent to select and nominate teachers to various Madarshas in accordance with the provisions of the Commission Act and the Rules framed thereunder.


Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL/INHERENT JURISDICTION
CIVIL APPEAL NO.5808 OF 2017
Sk. Md. Rafique …Appellant
VERSUS
Managing Committee,
Contai Rahamania High Madrasah and Others …Respondents

WITH
C.A. No.6098/2017
CONMT.PET.(C) No.670/2017 In SLP(C) No.6661/2016
CONMT.PET.(C) No.669/2017 In SLP(C) No.6661/2016
CONMT.PET.(C) No.828/2017 In SLP(C) No.6661/2016
C.A. No.5809/2017
C.A. No.5826/2017
C.A. No.5817/2017
C.A. No.5814/2017
CONMT.PET.(C) No.583/2016 In SLP(C) No.6661/2016
C.A. No.5829/2017
W.P.(C) No.723/2016
CONMT.PET.(C) No.846/2016 In SLP(C) No.6661/2016
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
2
CONMT.PET.(C) No.1509/2017 in C.A. No.5808/2017
 W.P.(C) No.629/2017
CONMT.PET.(C) No.1798/2017 in C.A. No.5808/2017
CONMT.PET.(C) No.937/2018 in C.A. No.5808/2017
CONMT.PET.(C) No.938/2018 in C.A. No.5808/2017
 CONMT.PET.(C) No.1219/2018 in C.A. No.5808/2017
CONMT.PET.(C) No.1274/2018 in C.A. No.5808/2017
CONMT.PET.(C) No.1669/2018 in C.A. No.5808/2017
CONMT.PET.(C) No.1921-1922/2018 in C.A. No.5808/2017
J U D G M E N T
Uday Umesh Lalit, J.
1. These appeals arise out of the Judgment and Order dated
09.12.2015 passed by the Division Bench of the High Court1
 dismissing
A.S.T. No.192 of 2014 and other connected matters and thereby affirming
the decision of the Single Judge of the High Court passed on 12.03.2014 in
Writ Petition No.20650 (W) of 2013 which in turn had found Sections 8,
10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008
(“the Commission Act”, for short) to be ultra vires.
1 The High Court of Judicature at Calcutta
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
3
2. The aforementioned Writ Petition No.20650(W) of 2013 was filed
by the Managing Committee of Contai Rahmania High Madrasah
challenging validity of Sections 8, 10, 11 and 12 of the Commission Act
submitting, inter alia, that by virtue of the provisions of the Commission
Act, the process of appointment of teachers in an aided Madrasah, which
was recognised as a minority institution, was taken over and entrusted to
the Commission appointed under Section 4 of the Commission Act; and
that the Commission was empowered under the provisions of the
Commission Act to make recommendations which would be binding on the
Managing Committee of an aided Madrasah. It was submitted that the
provisions of the Commission Act transgressed upon the rights of a
minority institution of choosing its own teachers. The submission was
accepted by the Single Judge of the High Court and the Writ Petition was
allowed. Aggrieved, some of the candidates, including the Appellant
herein, whose names were recommended by the Commission to be
appointed as teachers in aided Madrasahs, filed appeal being A.S.T. No.
192 of 2014 before the Division Bench of the High Court. C.A.N. No.
3078 of 2014 was filed by the Secretary, West Bengal Madrasah Service
Commission while M.A.T. No. 473 of 2014 was filed by State of West
Bengal challenging the very same decision of the Single Judge. All the
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
4
appeals were dismissed by the Division Bench while affirming the view
taken by the Single Judge.
3. The decisions of the Single Judge and the Division Bench have
given rise to the present set of Appeals wherein number of Intervention
Applications have also been filed.
STATUTORY PROVISIONS
4. The West Bengal Board of Madrasah Education Act, 1994 was
enacted to establish a Board of Madrasah Education in West Bengal and to
provide for matters connected therewith or incidental thereto. The
expressions “Madrasah”, “Madrasah Education”, “Managing Committee”
and “Senior Madrasah” are defined in Sections 2(f), (g), (h) and (p) as
under:-
“2(f) “Madrasah” means an educational
institution imparting instruction in Madrasah
Education;
(g) “Madrasah Education” means a system of
education in which instruction is imparted in Arabic,
Islamic history and culture, and theology, and
includes-
(i) High Madrasah Education System which,
in addition to covering Arabic language and
Islamic history and culture, imparts general
education including primary education with a
view to qualifying students for admission to a
certificate, diploma or degree course instituted by
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
5
a University or by a Government or by any
statutory authority, and includes such other type
of education as the State Government may, in
consultation with the Board, specify;
(ii) Senior Madrasah Education System which
imparts instruction in Arabic language and
literature, Islamic theology, history, culture and
jurisprudence and some general education with a
view to qualifying students for a certificate,
diploma or degree of the Board or a University or
a Government or any other statutory authority;
(h) “Managing Committee” used in reference to an
Institution means the person or the body of persons
for the time being entrusted with the management of
the affairs of the Institution;
… … …
(p) “Senior Madrasah” means a Madrasah where the
Senior Madrasah Education System is followed.”
4.1 Chapter 2 of the Act inter alia, deals with establishment and
composition of the Board while Section 18 deals with constitution of
various Committees. Section 19 then deals with functions of the
Committees as under:-
“19.Functions of Committee.-(1) It shall be the duty
of the Recognition Committee to advise the Board on
all matters concerning recognition of Institutions.
(2) It shall be the duty of the Syllabus Committee to
advise the Board on all matters relating to the
syllabus, courses of studies to be followed and the
books to be studied in recognised Institutions and for
examinations instituted by the Board.
(3) It shall be the duty of the Examinations
Committee to advise the Board on – 
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SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
6
(a) matters relating to selection of paper
setters, moderators, tabulators, examiners,
invigilators, supervisors and others to be
employed in connection with examinations
instituted by the Board and the rates of
remuneration to be paid to them;
(b) the fees to be paid by candidates for such
examinations; and
(c) any other matter relating to such
examinations which may be referred to it by the
Board for advice
(4) It shall be the duty of the Finance Committee to
prepare the budget of the Board and to advise the
Board on such matters relating to finance as may be
referred to it by the Board for advice.
(5) (a) All appeals by the members of the teaching and
non-teaching staff against the decisions of the
Managing Committees of the recognised Institutions
shall be heard and decided by the Appeal Committee.
(b) The decisions of the Appeal Committee
under clause (a) shall be final and no suit or
proceeding shall lie in any Civil or Criminal
Court in respect of any matter which has been or
may be referred to, or has been decided by, the
Appeal Committee.
(c) Any other Committee or Committees that
may be constituted under clause (f) of sub-section
(1) of section 18 shall have such powers or
functions as the Board may confer or impose on
such Committee or Committees.”
4.2 Section 20 deals with functions of the Board as under:-
20. Functions of the Board. – (1) It shall be the duty
of the Board to advise the State Government on all
matters relating to Madrasah Education referred to it
by the State Government.
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
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(2) Subject to any general or special orders of the
State government, the provisions of this Act and any
rules made thereunder, the Board shall have generally
the power to direct, supervise and control Madrasah
Education and in particular, the power-
(a) to grant or refuse recognition to Madrasah and
to withdraw such recognition if it thinks fit and
necessary, after considering the recommendations
of the Recognition Committee in accordance with
such regulations as might be made in this behalf :
(b) to maintain a register of recognized
Madrasahs;
(c) to provide by regulations, after considering
the recommendations of the Syllabus Committee,
if any, the curriculum, syllabus, courses or studies
to be followed and books to be studied in
recognized Madrasahs for examinations instituted
by the Board;
(d) to undertake, if necessary, with the approval of
the State Government, the preparation,
publication or sale of text-books and other books
for use in recognised Madrasahs;
(e) to maintain and publish list of holidays for
recognised Madrasahs, list of books approved for
use in recognized Madrasahs and for
examinations instituted by the Board and to
remove the name of any such book from any such
list;
(ee) to maintain, print and issue from time to
time, the Registration Certificate, Admit Card,
Marksheet, Migration Certificate, Certificates and
such other papers as it may thinks fit;
(f) To institute various Madrasah Examinations
and such other similar examinations as it may
think fit and to make regulations in this behalf;
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
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(g) to set down the conditions to be fulfilled by
the candidates presenting themselves for
examinations instituted by the Board;
(h) to provide by regulations after considering the
recommendations of the Examinations
Committee, if any, the rates of remuneration’ to
be paid to the paper-setters, moderators,
tabulators, examiners. invigilators, supervisors
and others employed in connection with the
examinations instituted by the Board, and, the
fees to be paid by candidates for such
examinations with the approval of the State
Government;
(i) to grant or refuse permission to candidates to
appear at examinations instituted by the Board
and to withdraw such permission if it thinks fit in
accordance with such regulations as may be made
in this behalf;
(j) to provide by regulations the procedure for
filling and disposal of appeals by the members of
the teaching and non-teaching staff against the
decisions of the Managing Committees of
recognized Madrasahs;
(k) to administer the West Bengal Madrasah
Education Board Fund;
(l) to institute and administer such Provident
Funds as may be prescribed;
(m) to make regulations relating to the conduct,
discipline and appeal in respect of the members of
the staff ;
(mm) to make regulations relating to
conduct and discipline in respect of
teachers and non-teaching staff of the
recognised Institutions under the Board;
(mmm) to make regulations determining
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
9
the qualification for, and the method of,
recruitment of teachers in class I to class
IV of the Senior Madrasah;
(n) to perform such other functions as may be
assigned to it by the State Government.
(3) Subject to the provisions of sub-section (2). the
Board shall have power to make regulations in respect
of any matter for the proper exercise of its powers
under this Act.
Provided that any decision or action taken or any
order made by the Board in the discharge of its
functions under this Act shall not be invalid merely on
the ground that no regulation has been made under
this sub-section.
(4) No regulation shall be valid unless it is approved
by the State Government and the State Government
may, in accordance with such approval, make such
additions, alterations or modifications therein as it
thinks fit:
Provided that before making any such addition,
alteration or modification, the State Government shall
give the Board an opportunity to express its views
thereon within such period, not exceeding one month,
as may be specified by the State Government.
(5) All regulations approved by the State Government
shall be published in the Official Gazette.”
5. The West Bengal Minorities’ Commission Act, 1996 was enacted
to constitute a Minorities Commission to study and suggest additional
social, economic, educational and cultural requirements of religious and
linguistic minorities of West Bengal with a view to equipping them to
preserve secular traditions of West Bengal and to promote national
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
10
integration. Section 3 deals with Constitution of the West Bengal
Minorities’ Commission and sub Sections (1) and (3) of Section 4 are as
under:-
“4. Functions of the Commission.– (1) The
Commission shall perform the following functions:-
(a) evaluate the progress of the development of
minorities of West Bengal and review implementation
of the policies and. programme of the State
Government;
(b) monitor the working of the safeguards provided in
the Constitution and in laws enacted by Parliament or
the State Legislature;
(c) make recommendations for the effective
enforcement and implementation of safeguards for the
protection of the interests of minorities provided by
the Central Government or the State Government;
(d) look into specific complaints regarding
deprivation of social, economic, educational, cultural
and linguistic rights and safeguards of the minorities
and take up such matters with the-appropriate
authorities;
(e) recommend to the State Government to accord
minority status to religious, linguistic and ethnic
groups, provided such groups do not enjoy any
constitutional or statutory benefits or status;
(f) cause studies to be undertaken into problems
arising out of any discrimination against minorities
and recommend measures for their removal;
(g) conduct studies, research and analysis on the
issues relating to socio-economic and educational
development of minorities; 
Civil Appeal No.5808 of 2017
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Managing Committee, contai Rahamania High Madrasah and Others
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(h) make annual report to the State Government on
any matter pertaining to any of the functions of the
Commission under this section.
… …
(3) The advice of the Commission and, especially, the
findings of the Commission concerning deprivation of
any right of the minority or any infringement of any
well-being of the minority by omission or
commission, shall ordinarily be binding upon the
State Government.”
6. The West Bengal School Service Commission Act, 1997 (“1997
Act”, for short) was enacted to provide for the constitution of Regional
School Service Commissions and a Central School Service Commission in
the State and for matters connected therewith or incidental thereto. The
definitions of “School” and “Teacher” in Section 2(n) and (p) are as
under:-
“(n) “school” means a recognized non-Government
aided –
(i) secondary school, or educational institution, or
part or department of such school or institution,
imparting instruction in a secondary education or
(ii) higher Secondary school, or educational
institution (other than a college), or part or department
of such school or institution, imparting instruction in
higher secondary education, or
and includes a sponsored school.
Explanation I –“Recognized” with its grammatical
variations, used with reference to a school, shall mean
– 
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
12
(a) recognized or deemed to have been recognized
under the West Bengal Board of Secondary Education
Act, 1963 or
(b) recognized under the West Bengal Council of
Higher Secondary Education Act, 1975,
Explanation II – “Aided” with its grammatical
variations, used with reference to a school, shall mean
aided by the State Government in the shape of
financial assistance towards the basic pay of the
teachers of that school.
Explanation III – “Basic pay” shall mean the monthly
pay of a teacher of a school which corresponds to a
stage in the time-scale of pay of the post, held by the
teacher in that school.
Explanation IV – “Secondary Education” shall have
the same meaning as in clause (1) of section 2 of the
West Bengal Board of Secondary Education Act,
1963.
Explanation V – “Higher Secondary Education” shall
have the same meaning as in clause (d) of section 2 of
the West Bengal Council of Higher Secondary
Education Act, 1975.
Explanation VI – “Sponsored School” shall mean a
school declared as a sponsored school by the State
Government by notification.
(p) “Teacher” means an Assistant Teacher or any other
person, holding a teaching post of a school and
recognized as such by the Board or the Council or the
Board of Madrasah, as the case may be, and includes
the Headmaster or the Headmistress 2
(but shall not
include the Assistant Headmaster or the Assistant
Headmistress or the Teacher holding a post against
short-term vacancy caused by deputation, leave or
lien).”
2 The words within brackets were inserted by the West Bengal School Service
Commission (Second Amendment) Act, 2001. 
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
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6.1 Section 3 deals with constitution of the Commission and Regional
Commissions. Section 4(4) dealing with composition of Chairman is as
under:
“(4) (a) The office of the Chairman shall be
whole-time; the other members shall be honorary.
(b) The Chairman and other members shall hold
office for a term of four years 3
[but in the case of
ex officio member such term shall be one year]:
(c) Subject to the foregoing provisions of this subsection, the other terms and conditions of service
of the Chairman and other members shall be such
as may be prescribed.”
6.2 Sections 7 and 9 are as under:-
“7. Functions of Regional Commission. –
Notwithstanding anything contained in any other law
for the time being in force or in any contract, custom
or usage to the contrary, it shall be the duty of the
Regional Commission to recommend persons for
appointment to the posts of Teachers or non-teaching
staff in school within its territorial jurisdiction under
he supervision and control of the Central Commission
on the basis of the result of the State Level Selection
Test conducted by the Central Commission.
9. Effect of recommendation of Commission – (1)
Notwithstanding anything contained in any other law
for the time being in force or in any contract, custom
or usage to the contrary, appointments to the posts of
Teachers and non-teaching staff in school shall be
made by the Board or the ad-hoc committee or the
administrator of the Board on the recommendation of
the Regional Commission having jurisdiction.
(2) Any appointment of a Teacher or a non-teaching
staff made on or after the commencement of this Act
3 Words ins. By W.B. Act 5 of 2001.
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in contravention of the provisions of this Act shall be
invalid and shall have no effect and the Teacher or the
non-teaching staff so appointed shall not be a Teacher
or a non-teaching staff within the meaning of clause
(p) or clause (ia) of section 2, as the case may be.”
6.3 Sub-sections (a) and (b) of Section 15, however, stipulated as
under:
“15. Act not to apply in relation to certain
schools:-
The provisions of this Act shall not apply to-
(a) a school established and administered by a
minority, whether based on religion or language,
or
(b) a school under any trust, established and
administered by a minority, whether based on
religion or language, or … … … ”
7. By notification issued on 12.10.2007, Government of West Bengal,
Minorities Development and Welfare and Madrasah Education Department
declared and granted to all recognised and aided Madrasahs under the
control of the Government the status of “Minority Educational
Institutions”. The text of the Notification was as under:-
“Government of West Bengal
Minorities Development & Welfare & Madrasah
Education Department
Writers’ Buildings, Kolkata – 700001
No.1465-MD/07 Dated: 12.10.07
Civil Appeal No.5808 of 2017
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Managing Committee, contai Rahamania High Madrasah and Others
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NOTIFICATION
WHEREAS Muslim recognised as Minority
Community in the State of West Bengal and
minorities have the right under Article 30 of the
Constitution of India to establish and administer
educational institution of their choice;
AND WHEREAS the State Government is
competent to declare a particular institution as a
minority institution and till such time the government
issue an order declaring that it is a minority institution
they can not operate as Minority Institutions;
AND WHEREAS the Supreme Court has held that
the Government are the Competent Authority to verify
and determine the minority status of an Educational
Institution for the purpose of Article 30(1) of the
Constitution of India;
AND WEHREAS the Govt. recognised Madrasahs
including Hooghly Govt. Madrasah and the Calcutta
Madrasah were originally established by the Muslim
minority and continuously administered by the
members of that minority to subserve and promote the
interests of the minority community concerned;
AND WEHREAS the abovesaid Madrasahs were, in
course of times, recognised alongwith liabilities by
the Government for promoting educational interests
of the Muslim minority and on verification it has been
ascertained that more than 90% students are pursuing
their studies in these institutions and these Madrasahs
are functioning under supervision of the W.B.
Madrasah Board constituted with member
representatives of the Minority Community
concerned.
AND WHEREAS the State Govt. having been
satisfied about the above antecedents of all the
recognised Madrasahs which are aided and guided by
the Government prescribed guidelines relating to
admissions, selections etc. and about their continuing
Civil Appeal No.5808 of 2017
SK. MD. Rafique vs.
Managing Committee, contai Rahamania High Madrasah and Others
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and sustained functioning for promoting the interests
of the concerned minority have become satisfied that
these institutions are fit to enjoy minority status of an
Educational Institution for the purpose of Article
30(1) of the Constitution of India.
AND WHEREAS the Govt. in the State of West
Bengal have also considered expedients to declare
these recognized and aided Madrasahs and those
which will be so recognised and aided as such in
future as Minority Educational Institution.
NOW, THEREFORE, in accordance with the above
considerations and in pursuance of the Article 30 of
the Constitution of India the Government is pleased,
hereby, to declare that all the recognised and aided
Madrasahs under control of this Government and
those Madrasahs which will be recognised on similar
lines in future, as Minority Educational Institutions.
These institutions will also be allowed, in
consequence to have the following effects as agreed
upon by the State Government.
i) They will continue to get financial assistance
as before from the State Government
ii) Reservation policy for employment etc. shall
not apply in case of appointment of teachers
and non-teaching staff in these Madrasahs.
iii) Selection of teachers may continue to be done
by West Bengal School Service Commission
through separate panel.
By order of the Governor
(Pawan Agawal)
Secretary to the Govt. of West Bengal”
8. Consequent to the aforesaid notification dated 12.10.2007
conferring status of “Minority Educational Institutions” on all recognised
and Government aided Madrasahs, another notification was issued on
Civil Appeal No.5808 of 2017
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28.12.2007 by the Government of West Bengal, Minorities’ Development
& Welfare and Madrasah Education Department stating that after being
conferred such status “the matter of selection of teachers for recognised
and aided Madrasahs of this State has gone out of the purview of the
existing West Bengal School Service Commission Act, 1997”.
9. The Commission Act was thereafter enacted to provide for the
constitution of Madrasah Service Commission in the State and for matters
connected therewith or incidental thereto. Statement of Objects and
Reasons in relation to the Commission Act was as under:-
“With the declaration of recognised madrasahs as
minority educational institutions by the State
Government recently, the West Bengal School Service
Commission cannot recommend panel of teachers for
recognised madrasahs as per provisions of Section 15
of the West Bengal School Service Commission Act,
1997 (West Bengal Act IV of 1997). Therefore, a
need has arisen for setting up of a separate body for
recommending panel of teachers for appointment in
Recognised Non-Government Aided Madrasahs. In
view of this, it has been decided to set up the West
Begal Madrasah Service Commission.
2. The proposed Commission would ensure the
preparation of panel of teachers by recruitment in
free, fair and transparent manner with a quality
education for madrasahs.
3. The said Commission would also take into
consideration the special requirement of teachers in
the madrasahs system in the State.
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4. The Bill has been framed with the above objects
in view.”
9.1 The expressions “Madrasah”, “Teacher” and “vacant post” are
defined in Section 2(k), (s) and (t) respectively under the Commission Act
as under:-
“(k) “Madrasah” means a Recognised NonGovernment Aided Senior Madrasah, Junior High
Madrasah, High Madrasah or Higher Secondary
Madrasah imparting instruction in-
(i) High Madrasah Education System within the
meaning of sub-clause (i)
(ii) Senior Madrasah Education System within the
meaning of sub-clause(ii), of clause (g) of
Section 2 of the West Bengal Board of
Madrasah Education Act, 1994; or
(iii) Higher Secondary Education;
Explanation1. – “recognised” with its
grammatical variations, used with reference to
a Madrasah, shall mean-
(a) Recognized or deemed to have been
reconized under the West Bengal Board of
Madrasah Education Act, 1994, or
(b) Recognized under the West Bengal
Council of Higher Secondary Education Act,
1975
Explanation II. – “Aided” with its grammatical
variations, used with reference to a Madrasah, shall
mean aided by the State Government in the shape of
financial assistance towards basic pay of the teachers
of Madrasah.
Explanation III. – “basic pay” shall mean the monthly
pay of a teacher of a Madrasah which corresponds to
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a stage in the timescale of pay of the post held by the
teacher in that madrasah,
Explanation IV.- “Madrasah Education” shall have the
same meaning as in clause (g) of section 2 of the West
Bengal Board of Madrasah Education Act, 1994;
Explanation V.- “Higher Secondary Education” shall
have the same meaning as in clause (d) of section 2 of
the West Bengal Council of Higher Secondary
Education Act, 1975.
(s) “Teacher” means an Assistant Teacher, or any
other person holding a teaching post of a madrasah
recognised as such by the Board or the Council, as the
case may be, and shall include the headmaster, the
Headmistress or the Superintendent.
(t) “vacant post” means a vacancy, caused by–
(i) creation of new post by the State Government,
or
(ii) retirement, death, resignation, removal or
dismissal of any person from the post of teacher,
the post having been sanctioned by the
Competent authority or the State Government,
but shall not include a short-term vacancy due to
deputation, leave or lien and that of a part time post or
the post of Assistant Headmaster or Assistant
Headmistress.”
9.2 Section 4 deals with composition of the Commission and is to the
following effect:-
“4. (i) The Commission shall consist of one Chairman
and four members.
(ii) The Chairman shall be an eminent educationist
having profound knowledge in Islamic Culture and
well-versed in education and teaching experience,
either as a teacher of a university, or as a Principal of
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a college, for a period of not less than twelve years, or
as a teacher, other than Principal of a college, for a
period of not less than fifteen years, or an officer of
the State Government not below the rank of Joint
Secretary.
(iii) Of the four members under sub-section (1), one
shall be a person who, not being an educationist,
occupies or has occupied, in the opinion of the State
Government, a position of eminence in public life or
in Legal or Administrative service, one shall be an
eminent educationist having profound knowledge in
Islamic Theology and Culture, and the others shall
have teaching experience, either as a teacher of a
university, or as a Principal of a college, for a period
of not less than ten years, or as a teacher, other than
Principal of a college, or as a Headmaster or
Headmistress or Superintendent of a Madrasah, for a
period of not less than fifteen years.”
9.3 Sections 8, 10, 11, 12, 13 and 18 of the Commission Act are as
under:-
“8. Notwithstanding anything contained in any other
law for the time being in force or in any contract,
custom or usage to the contrary, it shall be the duty of
the Commission to select and recommend persons to
be appointed to the vacant posts of teachers in
accordance with the provisions of this Act and the
rules made thereunder.
…
10. Notwithstanding anything contained in any other
law for the time being in force or any contract, custom
or usage to the contrary, the Managing Committee,
the ad hoc Committee or the Administrator, as the
case may be, shall be bound to appoint the candidate
recommended by the Commission to the post of
teacher in the Madrasah concerned as per vacancy
report.
Provided that in the absence of the Managing
Committee, ad hoc Committee or the Administrator,
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the Head Master or the Headmistress or the TeacherIn-charge is empowered to issue appointment letter to
the candidate recommended by the Commission.
Such matter should be ratified at the next available
meeting of the Managing Committee, ad hoc
Committee or by the Administrator, as the case may
be:
Provided further that the Managing Committee, ad
hoc Committee, the Administrator or the Headmaster
or the Headmistress or the Teacher-in-charge as the
case may be, shall, if any error is detected in the
recommendation, immediately bring it to the notice of
the Commission for removal of such error.
11. Any appointment of a teacher made on or after
the commencement of this Act in contravention of the
provision of this Act shall be invalid and shall have no
effect and teacher so appointed shall not be a teacher
within the meaning of clause (s) of Section 2.
12. (i) If the Managing Committee, the ad hoc
Committee or the Administrator of a Madrasah, as the
case may be, refuses, fails or delays to issue
appointment letter to the candidate recommended by
the Commission within the period stipulated in the
letter of recommendation by the Commission, without
any reasonable ground, the State Government may
direct the Board to dissolve the Managing Committee
or the ad hoc Committee, or discharge the
Administrator, as the case may be, or stop all financial
assistance to such Madrasah recording reasons thereof
and may also issue direction upon the Board or
Council, as the case be, to withdraw recognition or
affiliation of such Madrasah.
(ii) In case of failure to issue appointment letter to
the candidate recommended by the Commission is on
the part of the Superintendent, the Headmaster, the
Headmistress or the Teacher-in-charge of a Madrasah,
he shall be subject to such disciplinary proceedings as
may be prescribed.
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13. Notwithstanding anything contained elsewhere in
this Act, the terms and conditions of service of
teachers in the employment of a Madrasah
immediately before the commencement of this Act,
shall not be varied to the disadvantage of such
teachers in so far as such terms and conditions relate
to the appointment of such teachers to the posts held
by them immediately before the commencement of
this Act.
… … …
18. (1) The State Government may, by notification,
make rules for carrying out the purposes of this Act.
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may
provide for all or any of the following matters:-
(a) the terms and conditions of service of the
Chairman and other members under section 5;
(b) the manner in which an inquiry is to be made
for removal of the Chairman or any member
under section 6;
(c) the terms and conditions of service of the
Secretary under section 7;
(d) the manner and scope of selection of persons
for appointment to the posts of teachers under
section 9;
(e) any other matter which may be, or is required
to be, prescribed.
(3) Every rule made by the State Government
under this Act shall be laid, as soon as may be
after it is made, before the State Legislature.”
10. The West Bengal Madrasah Service Commission (Amendment)
Act, 2010 made certain amendments in the Commission Act. Section 2 of
the Amendment Act is to the following effect:-
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“2. In section 8 of the West Bengal Madrasah Service
Commission Act, 2008 (hereinafter referred to as the
principal Act), after the words “or the Non-teaching
staff’, the words “and also to recommend the transfer
including mutual transfer of the teachers of the Nonteaching staff’ shall be inserted.”
11. In exercise of power conferred by the provisions of the
Commission Act, the West Bengal Madrasah Service Commission
Recruitment (selection and recommendation of persons for appointment
and transfer to the posts of teaching and non-teaching staff) Rules, 2010
(“2010 Rules”, for short) were promulgated. Chapter-III of 2010 Rules
deals with subject “Scope, Method and Manner of Selection” and Rule 8 is
to the following effect:-
“8. Manner of selection –
(1) Selection to any post shall be made on the basis of
results of the State/Region/Area Level Selection
Test, as may be decided by the Commission,
which may comprise any, some or all of the
following (as the case may be) –
a) Written Examination
b) Evaluation of Qualification
c) Personality Test
d) Aptitude Test
of the candidates, as the case may be, in the
manner as specified in Schedule III
(2) The Commission may, in its discretion, fix the
minimum qualifying marks to be scored/obtained
by the candidates in written examination or in
aggregate or in both and relax the qualifying
marks on reasonable ground(s) to be recorded in
writing ….”
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RIVAL SUBMISSIONS:
12. In accordance with the provisions of the Commission Act and 2010
Rules, the Madrasah Service Commission kept making recommendations
against vacant posts which had arisen from time to time. Various
candidates were appointed as teachers. However, a challenge was raised
by the Respondent No.1 by filing Writ Petition No.20650(W) of 2013 as
stated hereinabove. It was submitted that in terms of Section 10 of the
Commission Act, the Managing Committee or the Administrator would be
bound to appoint the candidates recommended by the Madrasah Service
Commission and the consequence of not following such recommendation
would visit penalty as provided for in Section 12; and that if the Writ
Petitioner, as a minority institution, was entitled to administer institution of
its choice, it would have a corresponding right to select teachers on its own
and that any deprivation of such right would be violative of the Right
conferred by Article 30 of the Constitution.
 On the other hand, it was submitted on behalf of the State that
under the provisions of the Commission Act, the Commission would
merely select and recommend teachers and non-teaching staff of
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Madrasahs but the appointment would be given by the concerned
institution and the overall control of the Managing Committees of the
concerned institutes in respect of such staff was not taken away by the
Respondents and the day-to-day administration of the Madrasahs was not
interfered with. It was further submitted that the number of Madrasahs in
the State was 614 and the Madrashs imparted education in accordance
with the syllabus prescribed by the competent authority in respect of all
subjects, except Arabic and Urdu; that most of the Madrasahs were
located in the remote areas of the State and the student population taking
education in these Madrasahs was about 5,00,000. The submission was
that the State was rendering necessary aid and help to the Managing
Committees in finding good quality teachers as per qualifications
prescribed by the National Council for Teacher Education for imparting
quality education to the students and the whole purpose behind the
legislation was to provide the students with good quality teaching. The
submission was paraphrased by the Single Judge as under:-
“For the respondents there are primarily two grounds
justifying the relevant provisions of such a legislation.
First, the concerned Madrasah is fully aided for its
financial requirements which is fulfilled by the State
Government. Therefore, it is bound to follow
recruitment procedures for fair and comparative
selection of teachers. Secondly, in terms of the
provisions of the impugned Act the Commission
merely selects and recommends a teacher but overall
control of such staff lies with the Managing
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Committee where the government does not interfere.
Thus the role of the Commission is that of a mere
recommendatory body appointed by the government.”
DECISIONS OF THE HIGH COURT IN THE PRESENT APPEALS
13. Relying on the decisions of this Court in State of Kerala, etc vs.
Very Rev. Mother Provincial, etc4
 and Ahmedabad St. Xavier’s College
Society and Another vs. State of Gujarat and Another5
 the Single Judge
observed:-
“The Supreme Court has also held that the right to
administer an institution is primarily to consist of four
principal aspects. First, the right to chose its
managing or governing body. It is said that the
founders of the minority institution have faith and
confidence in their committee or body consisting of
persons selected by them. Secondly, the right to
choose its teachers having compatibility with their
ideals, aims and aspirations. Third is the right not to
be compelled to refuse admission to the students.
Fourthly, the right to use its properties and assets for
the benefit of its institution. This judgment thus
unambiguously recognizes that the right to select its
teachers is a part of the right to administer an
institution which Article 30 has conferred on it. The
reasons for that has also been very clearly explained
in the judgment … … …”
4 (1970) 2 SCC 417
5 (1974) 1 SCC 717
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13.1 The Single Judge relied upon the decisions of this Court in
Secretary, Malankara Syrian Catholic vs. T. Jose and others6
 and
Sindhi Education Society and another vs. Chief Secretary,
Government of NCT of Delhi and others7
 and posed following question:-
“That regulatory measures are permissible to a limited
extent has been judicially accepted. But does the
provision impugned in this legislation qualify for
being passed as a regulatory measure? In view of the
well defined parameters of the regulatory measures
can it be said that taking away the right of selection of
teachers from the jurisdiction of the petitioners is also
an act to regulate the affairs of the Madrasah and not
to interfere with its administration? Answers to these
queries are essentially related to a resolution of the
present dispute.”
13.2 Further, after referring to the decision in Ahmedabad St. Xavier’s
College5
the Single Judge observed:-
“… …The State can prescribe regulations to ensure
the excellence of the institution. Prescription of
standards for educational institutions does not militate
against the right of the minority to administer the
institutions. Regulations made in the true interest of
efficiency of instructions, discipline, health,
sanitation, morality, public order and the like may
undoubtedly be imposed. It has been specifically laid
down hat such regulations are not restrictions on the
subsistence of the right which is guaranteed. On the
other hand, they secure the proper functioning of the
institution in matters of education. The minority
institutions cannot be allowed to fall below the
standards of excellence expected of an educational
6 (2007) 1 SCC 386
7 (2010) 8 SCC 49
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institution or under the guise of exclusive right of
management to decline to follow the general patern.”
13.3. The Single Judge then concluded:-
“Thus, I find that the impugned provisions of the Act
tend to take away the protected right conferred upon
the minorities to administer institutions according to
their choice. The right of the Commission to select
and recommend teachers for these institutions in a
very major way interferes with the right to administer
those institutions rendering a constitutional mandate
virtually ineffective. The perception of a prevailing
social reality cannot circuitously circumvent a
constitutional protection.
The impugned provisions of the Act are thus not only
not in consonance with the protection guaranteed by
the Constitution but are definitely in derogation
thereof. Section 8 of the Act cannot be read in
isolation. Read with the subsequent provisions there
is an element of compulsion in the effect of the
recommendation made by the Commission which is
really against the freedom guaranteed in Article 30 of
the Constitution of India. Section 8 of the said Act is
hereby declared ultra vires the Constitution. In view
of what has been discussed before the prayer of the
petitioner is moulded and Sections 10, 11 and 12 of
the act are also declared ultra vires the Constitution.”
14. The challenge raised by the Commission, by the State as well as by the
teachers who were recommended under the provisions of the Commission Act
was rejected by the Division Bench of the High Court, while accepting the view
taken by the Single Judge. The Division Bench observed:-
“The present enactment is sought to be defended by
the State on the ground of funding the institutions and
opinion that it is only recommendatory process and
not interference with the overall administration of the
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institutions. We are afraid whatever by the nature of
recommendations it would definitely touch upon the
administrative authority or control to be exercised by
the minority institutions while administering their
institutions in every aspect and respect since
institutions would not have the option to choose
individuals beyond the recommendations so made.
Hence, the scheme of the Act instead of being
regulatory, prohibits the freedom of minority
institutions in selecting its own personnel. It is one
thing to regulate the process of appointment by
providing guidelines etc. it is however entirely
different to clog the right of choice of the minority
institution by prohibiting them to choose any
candidate otherwise eligible except from those
recommended by the Commission. Since
appointment of teachers etc. is very relevant so far as
the quality of education is concerned, if there are any
mala fides statutory infirmities brought to the notice
of the State Government as it is completely funded by
the State Government, it is open to the State
Government to withdraw financial support if mala
fides/illegalities are found in such process of selection
of teaching staff etc. Such right is always with the
State Government irrespective of minority institutions
or other institutions.
So far as the present enactment is concerned, we
cannot deviate from the opinion of the learned Single
Judge that such act is nothing but violation of the
Fundamental Rights guaranteed by the Constitution in
terms of Article 29 and 30 of the Constitution of
India. Therefore, we decline to interfere with the
opinion expressed by the learned Single Judge and
accordingly appeals deserve to be dismissed.
We have also heard the submissions made by the
learned Counsel who are appearing for some of the
teachers who are already appointed and are in service
for the last five years or waiting for the appointment
of teachers as empanelled in the list.
Since the Act of 2008, according to us is nothing
but violation of the Fundamental Rights guaranteed
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by the Constitution to the minority institutions, it is
exclusively left to the concerned Madrasahs either to
accept contention of such teachers, who are already in
service and permit them to continue in service and/or
to provide appointment to the candidates who are
empanelled by the Commission awaiting such
appointment.
With these observations, the appeals are disposed
of along with the connection applications.”
15. We heard Mr. Mohan Parasaran, Mr. Kalyan Banerjee, Mr. Huzefa
Ahmadi, Mr. Jayant Bhushan, Mr. Jaideep Gupta, Mr. Salman Khursheed
and Mr. P.S. Patwalia, learned Senior Advocates appearing for various
parties and other learned Advocates who took us through the relevant
decisions holding the field and also invited our attention to various
statutory provisions. Since the submissions, to a certain extent, were over
lapping, we are not dealing with the submissions advanced by the learned
Counsel individually.
16. The basic issues which arise for consideration are whether the
provisions, namely, Sections 8, 10, 11 and 12 of the Commission Act are
ultra vires as held by the High Court and whether these provisions
transgress the right of minority institutions guaranteed under the
Constitution of India. Before we deal with the basic issues raised in these
appeals, the various decisions touching upon the extent of rights of
minority institutions as guaranteed by the Constitution, need to be adverted
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to. Since the decision of this Court in TMA Pai Foundation and others
vs. State of Karnataka and others8
 was rendered by a Bench of Eleven
Judges, we have divided the discussion under three headings covering
relevant decisions:-
A) Decisions upto TMA Pai Foundation;
B) Decision in TMA Pai Foundation; and
C) Decisions after TMA Pai Foundation.
A) Decisions upto TMA Pai Foundation
17. In Re: The Kerala Education Bill, 19579
, a seven Judge Bench of
this Court dealt with a reference made by the President of India under
Article 143(1) of the Constitution in respect of the Kerala Education Bill,
1957. Some of the salient features of the Bill were paraphrased in the
majority opinion delivered by S.R. Das, C.J. and insofar as the present case
is concerned, the relevant discussion was:-
“Clause 9 makes it obligatory on the Government to
pay the salary of all teachers in aided schools direct or
through the headmaster of the school and also to pay
the salary of the non-teaching staff of the aided
schools. It gives power to the Government to
prescribe the number of persons to be appointed in the
non-teaching establishment of aided schools, their
salaries, qualifications and other conditions of service.
The Government is authorised, under sub-clause (3),
to pay to the manager a maintenance grant at such
8 (2002) 8 SCC 481
9 (1959) SCR 995
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rates as may be prescribed and under sub-clause (4) to
make grants-in-aid for the purchase, improvement and
repairs of any land, building or equipment of an aided
school. Clause 10 requires Government to prescribe
the qualifications to be possessed by persons for
appointment as teachers in Government schools and
in private schools which, by the definition, means
aided or recognised schools. The State Public Service
Commission is empowered to select candidates for
appointment as teachers in Government and aided
schools according to the procedure laid down in
clause 11. Shortly put, the procedure is that before the
31st May of each year the Public Service Commission
shall select for each district separately candidates with
due regard to the probable number of vacancies of
teachers that may arise in the course of the year, that
the list of candidates so selected shall be published in
the Gazette and that the manager shall appoint
teachers of aided schools only from the candidates so
selected for the district in which the school is located
subject to the proviso that the manager may, for
sufficient reason, with the permission of the
Commission, appoint teachers selected for any other
district. Appointment of teachers in Government
schools are also to be made from the list of candidates
so published. In selecting candidates the Commission
is to have regard to the provisions made by the
Government under clause (4) of Art. 16 of the
Constitution, that is to say, give representation in the
educational service to persons belonging to the
Scheduled Castes or Tribes–a provision which has
been severely criticised by learned counsel appearing
for the Anglo-Indian and Muslim communities.”
 (Emphasis supplied)
17. 1 The grievance as raised was set out as under:-
“Their grievances are thus stated : The gist of the right
of administration of a school is the power of
appointment, control and dismissal of teachers and
other staff. But under the said Bill such power of
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management is practically taken away. Thus the
manager must submit annual statements (cl. 5). The
fixed assets of the aided schools are frozen and cannot
be dealt with except with the permission of the
authorised officer (cl. 6). No educational agency of an
aided school can appoint a manager of its choice and
the manager is completely under the control of the
authorised officer, for he must keep accounts in the
manner he is told to do and give periodical inspection
of them, and on the closure of the school the accounts
must be made over to the authorised officer (cl. 7). All
fees etc. collected will have to be made over to the
Government (cl. 8(3)). Government will take up the
task of paying the teachers and the non-teaching staff
(clause 9). Government will prescribe the
qualification of teachers (clause 10). The school
authorities cannot appoint a single teacher of their
choice, but must appoint persons out of the panel
settled by the Public Service Commission (clause 11).
The school authorities must provide amenities to
teachers and cannot dismiss, remove, reduce or even
suspend a teacher without the previous sanction of the
authorised officer (clause 12).
 (Emphasis supplied)
17. 2 The majority opinion observed:-
“We are thus faced with a problem of considerable
complexity apparently difficult of solution. There is,
on the one hand the minority rights under Art. 30(1) to
establish and administer educational institutions of
their choice and the duty of the Government to
promote education, there is, on the other side the
obligation of the State under Art. 45 to endeavour to
introduce free and compulsory education. We have to
reconcile between these two conflicting interests and
to give effect to both if that is possible and bring
about a synthesis between the two. The directive
principles cannot ignore or override the fundamental
rights but must, as we have said, subserve the
fundamental rights. We have already observed that
Art. 30(1) gives two rights to the minorities, (1) to
establish and (2) to administer, educational
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institutions of their choice. The right to administer
cannot obviously include the right to mal-administer.
The minority cannot surely ask for aid or recognition
for an educational institution run by them in
unhealthy surroundings, without any competent
teachers, possessing any semblance of qualification,
and which does not maintain even a fair standard of
teaching or which teaches matters subversive of the
welfare of the scholars. It stands to reason, then, that
the constitutional right to administer an educational
institution of their choice does not necessarily militate
against the claim of the State to insist that in order to
grant aid the State may prescribe reasonable
regulations to ensure the excellence of the institutions
to be aided. Learned Attorney-General concedes that
reasonable regulations may certainly be imposed by
the State as a condition for aid or even for
recognition….”
“…..Clauses 6, 7, 9, 10, 11, 12, 14, 15 and 20 relate to
the management of aided schools. Some of these
provisions, e.g., 7, 10, 11(1), 12(1)(2)(3) and (5) may
easily be regarded as reasonable regulations or
conditions for the grant of aid. Clauses 9, 11(2) and
12(4) are, however, objected to as going much beyond
the permissible limit. It is said that by taking over the
collections of fees, etc., and by undertaking to pay the
salaries of the teachers and other staff the Government
is in reality confiscating the school fund and taking
away the prestige of the school, for none will care for
the school authority. Likewise clause 11 takes away
an obvious item of management, for the manager
cannot appoint any teacher at all except out of the
panel to be prepared by the Public Service
Commission, which, apart from the question of its
power of taking up such duties, may not be qualified
at all to select teachers who will be acceptable to
religious denominations and in particular sub-clause
(2) of that clause is objectionable for it thrusts upon
educational institutions of religious minorities
teachers of Scheduled Castes who may have no
knowledge of the tenets of their religion and may be
otherwise weak educationally. Power of dismissal,
removal, reduction in rank or suspension is an index
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of the right of management and that is taken away by
clause 12(4). These are, no doubt, serious inroads on
the right of administration and appear perilously near
violating that right. But considering that those
provisions are applicable to all educational
institutions and that the impugned parts of cls. 9, 11
and 12 are designed to give protection and security to
the ill paid teachers who are engaged in rendering
service to the nation and protect the backward classes,
we are prepared, as at present advised, to treat these
clauses 9, 11(2) and 12(4) as permissible regulations
which the State may impose on the minorities as a
condition for granting aid to their educational
institutions. We, however, find it impossible to
support cls. 14 and 15 of the said Bill as mere
regulations. The provisions of those clauses may be
totally destructive of the rights under Art. 30(1). It is
true that the right to aid is not implicit in Art. 30(1)
but the provisions of those clauses, if submitted to on
account of their factual compulsion as condition of
aid, may easily be violative of Art. 30(1) of the
Constitution. Learned counsel for the State of Kerala
recognizes that cls. 14 and 15 of the Bill may
annihilate the minority communities' right to manage
educational institutions of their choice but submits
that the validity of those clauses is not the subjectmatter of question 2. But, as already explained, all
newly established schools seeking aid or recognition
are, by clause 3(5), made subject to all the provisions
of the Act. Therefore, in a discussion as to the
constitution validity of clause 3(5) a discussion of the
validity of the other clauses of the Bill becomes
relevant, not as and by way of a separate item but in
determining the validity of the provisions of clause
3(5). In our opinion, sub-clause 3 of clause 8 and cls.
9, 10, 11, 12 and 13 being merely regulatory do not
offend Art. 30(1), but the provisions of sub-clause (5)
of clause 3 by making the aided educational
institutions subject to cls. 14 and 15 as conditions for
the grant of aid do offend against Art. 30(1) of the
Constitution.”
(Emphasis supplied)
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18. In Rev. Sidhajbhai Sabhai and Others v. State of Bombay and
Another10
, a Bench of six Judges of this Court was called upon to decide
following controversy:-
“The petitioners moved this Court for a writ in the
nature of mandamus or other writ directing the State
of Bombay and the Director of Education not to
compel the society and the petitioners to reserve 80%
or any seats in the training, College for “the
Government nominated teacher” nor to compel the
society and the petitioners to comply with the
provisions of Rules 5(2), 11, 12 and 14 and not to
withdraw recognition of the College or withhold
grant-in-aid under Rule 14 or otherwise.”
18.1 The petitioners, members of a religious denomination and
constituting a religious minority were running a Training College for
teachers and 80% of the seats in all non-Government Training Colleges
were directed to be reserved for “the government nominated teachers” so
that such trained teachers could then be absorbed in Primary and Basic
Schools in the State run by District School or Municipal Boards.
18.2 It was submitted on behalf of the State that since the School run
by the Petitioners was receiving grant from the State, the State was within
its rights to direct reservation of seats as above. After referring to the
decision of this Court in Re: The Kerala Education Bill case9
, it was
observed by this Court as under:-
10 (1963) 3 SCR 837
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“Article 30(1) provides that all minorities have the
right to establish and administer educational
institutions of their choice, and Art. 30(2) enjoins the
State, in granting aid to educational institutions not to
discriminate against any educational institution on the
ground that it is under the management of a minority,
whether based on religion or language. Clause (2) is
only a phase of the non-discrimination clause of the
Constitution and does not derogate from the
provisions made in clause (1). The clause is moulded
in terms negative : the State is thereby enjoined not to
discriminate in granting aid to educational institutions
on the ground that the management of the institution
is in the hands of a minority, religious or linguistic,
but the form is not susceptible of the inference that
the State is competent otherwise to discriminate so as
to impose restrictions upon the substance of the right
to establish and administer educational institutions by
minorities, religious or linguistic. Unlike Art. 19, the
fundamental freedom under clause (1) of Art. 30, is
absolute in terms; it is not made subject to any
reasonable restrictions of the nature the fundamental
freedoms enunciated in Art. 19 may be subjected to.
All minorities, linguistic or religious have by Art.
30(1) an absolute right to establish and administer
educational institutions of their choice; and any law or
executive direction which seeks to infringe the
substance of that right under Art. 30(1) would to that
extent be void. This, however, is not to say that it is
not open to the State to impose regulations upon the
exercise of this right. The fundamental freedom is to
establish and to administer educational institutions : it
is a right to establish and administer what are in truth
educational institutions, institutions which cater to the
educational needs of the citizens, or sections thereof.
Regulation made in the true interests of efficiency of
instruction, discipline, health, sanitation, morality,
public order and the like may undoubtedly be
imposed. Such regulations are not restrictions on the
substance of the right which is guaranteed : they
secure the proper functioning of the institution, in
matters educational.
(Emphasis supplied)
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18.3 The effect of the opinion in Re: The Kerala Education Bill9
 was
considered as under:-
 It was therefore held that notwithstanding the
absolute terms in which the fundamental freedom
under Art. 30(1) was guaranteed, it was open to the
state by legislation or by executive direction to
impose reasonable regulation. The Court did not,
however, lay down any test of reasonableness of the
regulation. The Court did not decide that public or
national interest was the sole measure or test of
reasonableness : it also did not decide that a
regulation would be deemed unreasonable only if it
was totally destructive of the right of the minority to
administer educational institution. No general
principle on which reasonableness or otherwise of a
regulation may be tested was sought to be laid down
by the Court. The Kerala Education Bill case9
,
therefore, is not an authority for the proposition
submitted by the Additional Solicitor General that all
regulative measures which are not destructive or
annihilative of the character of the institution
established by the minority, provided the regulations
are in the national or public interest, are valid.”
The right established by Art. 30(1) is a fundamental
right declared in terms absolute. Unlike the
fundamental freedoms guaranteed by Art. 19, it is not
subject to reasonable restrictions. It is intended to be a
real right for the protection of the minorities in the
matter of setting up of educational institutions of their
own choice. The right is intended to be effective and
is not to be whittled down by so called regulative
measures conceived in the interest not of the minority
educational institution, but of the public or the nation
as a whole. If every order which while maintaining
the formal character of a minority institution destroys
the power of administration is held justifiable because
it is in the public or national interest, though not in its
interest as an educational institution, the right
guaranteed by Art. 30(1) will be but a "teasing
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illusion", a promise of unreality. Regulations which
may lawfully be imposed either by legislative or
executive action as a condition of receiving grant or
of recognition must be directed to making the
institution while retaining its character as a minority
institution effective as an educational institution. Such
regulation must satisfy a dual test - the test of
reasonableness, and the test that it is regulative of the
educational character of the institution and is
conducive to making the institution an effective
vehicle of education for the minority community or
other persons who resort to it.”
(Emphasis supplied)
18.4 Finally, it was held,
“We are, therefore, of the view that the Rule 5(2) of
the Rules for Primary Training Colleges, and Rules 11
and 14 for recognition of Private Training institutions,
insofar as they relate to reservation of seats therein
under orders of Government, and directions given
pursuant thereto regarding reservation of 80% of the
seats and the threat to withhold grant-in-aid and
recognition of the college, infringe the fundamental
freedom guaranteed to the petitioners under Art.
30(1).”
19. In Rev. Father W. Proost and Others. vs. the State of Bihar and
Others11
, a Bench of five Judges of this Court was called upon to consider
the validity of certain provisions including Section 48-A of the Bihar State
Universities Act, 1960. In terms of said Section 48-A, no appointments,
dismissals, removals and termination of service or reduction in rank of
teachers could be made by the governing body of any college without the
recommendations of the University Service Commission. By virtue of
11AIR 1969 SC 465 = (1969) 2 SCR73
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Section 48A(6), the Commission was empowered to recommend to the
governing body of a college for appointment to every post of teacher,
names of two persons arranged in order of preference which were
considered by the Commission to be the best qualified for such posts.
While the challenge was pending in this Court, Section 48-B was
introduced which stated inter alia that notwithstanding anything contained
in certain provisions including in sub-Section (6) of 48-A, the governing
body of an affiliated College established by a minority would be entitled to
make appointments, dismissals, removals, termination of service or
reduction in rank of teachers or other disciplinary measures subject only to
the approval of the Commission and the Syndicate of the University. Thus,
instead of the Commission making the recommendations under the
unamended provisions, now the governing body established by a minority
could make appointments which were however subject to the approval by
the Commission and the Syndicate of the University. While allowing the
petition this Court observed :-
“The learned Attorney General seeks to read into the
protection granted by Art. 30(1) a corollary taken
from Art. 29(1). He concedes that the Jesuits
community is a minority community based on religion
and that, therefore, it has a right to establish and
administer educational institutions of its choice. But
he contends that as the protection to minorities in Art.
29(1) is only a right to conserve a distinct language,
script or culture of its own, the college does not
qualify for the protection of Art. 30(1) because it is
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not founded to conserve them. The question,
therefore, is whether the college can only claim
protection of s. 48-B of the Act read with Art. 30(1) of
the Constitution if it proves that the college is
furthering the rights mentioned in Art. 29(1).
In our opinion, the width of Article 30(1) cannot be
cut down by introducing in it considerations on which
Article 29(1) is based. The latter article is a general
protection which is given to minorities to conserve
their language, script or culture. The former is a
special right to minorities to establish educational
institutions of their choice. This choice is not limited
to institution seeking to conserve language, script or
culture and the choice is not taken away if the
minority community having established an
educational institution of its choice also admits
members of other communities. That is a
circumstance irrelevant for the application of Article
30(1) since no such limitation is expressed and none
can be implied. The two articles create two separate
rights, although it is possible that they may meet in a
given case.
… … …
In our judgment the language of Art. 30(1) is wide
and must receive full meaning. We are dealing with
protection of minorities and attempts to whittle down
the protection cannot be allowed. We need not
enlarge the protection but we may not reduce a
protection naturally flowing from the words. Here the
protection clearly flows from the words and there is
nothing on the basis of which aid can be sought from
Art. 29(1).”
20. In State of Kerala, etc vs. Very Rev. Mother Provincial, etc4
, a
Bench of six Judges of this Court considered challenge to certain
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provisions of the Kerala University Act, 1969. The ambit of the concerned
provisions was set out by this Court as under:-
“16. Section 53, Sub-sections (1), (2) and (3) confer
on the Syndicate of the University the power to veto
even the action of the governing body or the
managing council in the selection of the principal.
Similarly, Sub-section (4) takes away from the
educational agency or the corporate management the
right to select the teachers. The insistence on merit in
Sub-section (4) or on seniority-cum-fitness in Subsection (1) does not save the situation. The power is
exercised not by the educational agency or the
corporate management but by a distinct and
autonomous body under the control of the Syndicate
of the University. Indeed Sub-section (9) gives a right
of appeal to the Syndicate to any person aggrieved by
the action of governing body or the managing council
thus making the Syndicate the final and absolute
authority in these matters. Coupled with this is the
power of Vice-Chancellor and the Syndicate in Subsections (2) and (4) of Section 56.”
20.1 Thereafter, this Court extracted the relevant provisions which took
away the power to take disciplinary action from the governing body and
the managing council and conferred it upon the University. The decision
of the High Court which had found said provisions to be ultra vires was
affirmed by this Court as under:-
“19. The result of the above analysis of the provisions
which have been successfully challenged discloses
that that High Court was right in its appreciation of
the true position in the light of the Constitution. We
agree with the High Court that Sub-Sections (2) and
(4) of Sections 48 and 49 are ultra vires Article 30(1).
Indeed we think that Sub-Sections (6) of these two
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sections are also ultra vires. They offend more than
the other two of which they are a part and parcel. We
also agree that Sub-sections (1), (2), (3) and (9) of
Section 53, Sub-Sections (2) and (4) of Section 56 are
ultra vires as they fail with Sections 48 and 49. We
express no opinion regarding these sub-sections vis-avis Article 30(1). We also agree that Section 58 (in so
far as it removes disqualification which the founders
may not like to agree to) and Section 63 are ultra vires
Articles 30(1) in respect of the minority institutions.
The High Court has held that the provisions (Except
Section 63) are also offensive to Article 19(1)(f) in so
far as the petitioners are citizens of India both in
respect of majority as well as minority institutions.
This was at first debated at least in so far as majority
institutions were concerned. The majority institutions
invoked Article 14 and complained of discrimination.
However, at a later stage of proceedings Mr. Mohan
Kumaramangalam stated that he had instructions to
say that any provision held inapplicable to minority
institutions would not be enforced against the
majority institutions also. Hence it relieves us of the
task of considering the matter under Article 19(1)(f)
not only in respect of minority institutions but in
respect of majority institutions also. The provisions of
Section 63 affect both kinds of institutions alike and
must be declared ultra vires in respect of both.”
21. In D.A.V. College, etc.. vs. State of Punjab and Others11
, a Bench
of five Judges of this Court considered the challenge to certain provisions
of the Guru Nanak University, Amritsar, Act, 1969 and notifications issued
pursuant thereto. Under Section 2(1)(a) of the Act, a College applying for
admission to the privileges of the University was obliged to have a
regularly constituted governing body consisting of not more than 20
persons approved by the Senate which body must also include two
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representatives of the University. Section 17 required that the staff initially
appointed must be approved by the Vice Chancellor and any subsequent
changes be reported to the University for Vice-Chancellor’s approval.
These Sections were struck down by this Court as affecting the
fundamental rights of the petitioners. During the course of its discussion
this Court stated as under:-
“36.We have already seen that in Rev. Father W.
Proost and Ors. v. the State of Bihar and Ors.11, the
provisions of Section 48(A) which required the
selection of the teachers of all affiliated Colleges
including the Colleges established by the minorities,
to be made by the University Service Commission,
was held to interfere with the rights of the petitioners
in that case. In that case, while the petition was
pending in the Court, Section 48 (B) was added to the
Bihar State University Act whereby notwithstanding
the provisions of Section 48 (A) exemption was given
to the minority institutions to make appointments with
the approval of the Commission and the Syndicate,
the petitioners claimed exemption under Section
48(B) and submitted that as an affiliated College
established by a minority based on religion or
language they are exempted from Section 48 (A) and
that if this petition was accepted they will withdraw
the petition which had become superfluous. Even this
prayer was not acceded to by the State and
consequently it was held that they were entitled to the
exemption claimed. This decision is not therefore an
authority for the proposition that even the requirement
that the staff of a minority educational institution be
appointed, dismissed or removed only with the
approval of the University or the State does not
infringe the right to administer the institution
guaranteed under Article 30(1).
37. In our view there is no possible justification for
the provisions contained in Clauses 2(1)(a) and 17 of
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Chapter V of the statutes which decidedly interfere
with the rights of management of the petitioners
colleges. These provisions cannot therefore be made
as conditions of affiliation, the non-compliance of
which would involve disaffiliation and consequently
they will have to be struck down as offending Article
30(1).
38. Clause 18 however in our view does not suffer
from the same vice as Clause 17 because that
provision in so far as it is applicable to the minority
institutions empowers the University to prescribe by
regulations governing the service and conduct of
teachers which is enacted in the larger interests of the
Institutions to ensure their efficiency and excellence.
It may for instance issue an ordinance in respect of
age of superannuation or prescribe minimum
qualifications for teachers to be employed by such
Institutions either generally or in particular subjects.
Uniformity in the conditions of service and conduct of
teachers in all non-Government Colleges would make
for harmony and avoid frustration. Of course while
the power to make ordinances in respect of the
matters referred to is unexceptional the nature of the
infringement of the right, if any, under Article 30(1)
will depend on the actual purpose and import of the
ordinance when made and the manner in which it is
likely to affect the administration of the educational
institution, about which it is not possible now to
predicate.”
22. In Ahmedabad St. Xavier’s College Society and Another vs. State
of Gujarat and Another5
 the applicability of some of the provisions of the
Gujarat University Act, 1949 to a college run by a minority was in issue
before a Bench of nine Judges of this Court. Three sets of provisions were
impeached as being violative of Article 30, viz. (i) Sections 40 and 41 in
terms of which all colleges within the University area would be governed
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by the statutes of the University which may provide for minimum
educational qualifications for teachers and tutorial staff and the University
may approve the appointments of teachers and may coordinate and
regulate the facilities provided and expenditure incurred by such colleges
for teaching and research; (ii) Sections 33A(1)(a) and 33A(1)(b) under
which the management of a governing body of every college must include
amongst others, a representative of the University nominated by the ViceChancellor and three representatives of the teachers of the college and at
least one representative each of the members of the non-teaching staff and
the students of the college. Further, under Section 33A(1)(b), for the
purposes of recruitment of the principal and members of the teaching staff,
there would be a selection committee, which, in the case of recruitment of
the principal, must include a representative of the University nominated by
the Vice-Chancellor and in case of recruitment of a member of teaching
staff, a representative of the University nominated by the Vice-Chancellor
and the Head of the Department concerned with the subject taught by such
teacher; (iii) Sections 51A and 52A in terms of which no member of
teaching and non-teaching staff of any affiliated college could be dismissed
or removed from service or reduced in rank, except after an inquiry; no
termination of service of any such member would be valid unless such
termination was approved by the Vice-Chancellor; and any dispute
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between the governing body of the college and any member of the teaching
or non-teaching staff must be referred to a Tribunal of Arbitration
consisting of one member nominated by the governing body of the college,
one member nominated by the concerned member and an Umpire to be
nominated by the Vice-Chancellor.
22.1. In the leading Judgment authored by Ray, C.J., for himself and
Palekar, J., the extent of “right to administer” under Article 30 of the
Constitution and the effect of regulatory measures upon the width of said
right was summed up as under:-
“19. … … The right to administer is said to consist of
four principal matters. First is the right to choose its
managing or governing body. It is said that the
founders of the minority institution have faith and
confidence in their own committee or body consisting
of persons elected by them. Second is the right to
choose its teachers. It is said that minority institutions
want teachers to have compatibility with the ideals,
aims and aspirations of the institution. Third is the
right not to be compelled to refuse admission to
students. In other words, the minority institutions
want to have the right to admit students of their
choice subject to reasonable regulations about
academic qualifications. Fourth is the right to use its
properties and assets for the benefit of its own
institution.
20. The right conferred on the religious and linguistic
minorities to administer educational institutions of
their choice is not an absolute right. This right is not
free from regulation. Just as regulatory measures are
necessary for maintaining the educational character
and content of minority institutions similarly
regulatory measures are necessary for ensuring
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orderly, efficient and sound administration. Das, C.J.,
in the Kerala Education Bill case summed up in one
sentence the true meaning of the right to administer
by saying that the right to administer is not the right to
mal-administer.
22.1.1 While considering the importance of teachers in an educational
institution, Ray, C.J., stated:-
“30. Educational institutions are temples of learning.
The virtues of human intelligence are mastered and
harmonised by education. Where there is complete
harmony between the teacher and the taught, where
the teacher imparts and the student receives, where
there is complete dedication of the teacher and the
taught in learning, where there is discipline between
the teacher and the taught, where both are
worshippers of learning, no discord or challenge will
arise. An educational institution runs smoothly when
the teacher and the taught are engaged in the common
ideal of pursuit of knowledge. It is, therefore,
manifest that the appointment of teachers is an
important part in educational institutions. The
qualifications and the character of the teachers are
really important. The minority institutions have the
right to administer institutions. This right implies the
obligation and duty of the minority institutions to
render the very best to the students. In the right of
administration, checks and balances in the shape of
regulatory measures are required to ensure the
appointment of good teachers and their conditions of
service. The right to administer is to be tempered with
regulatory measures to facilitate smooth
administration. The best administration will reveal no
trace or colour of minority. A minority institution
should shine in exemplary eclectism in the
administration of the institution. The best compliment
that can be paid to a minority institution is that it does
not rest on or proclaim its minority character.
31. Regulations which will serve the interests of the
students, regulations which will serve the interests of
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the teachers are of paramount importance in good
administration. Regulations in the interest of
efficiency of teachers, discipline and fairness in
administration are necessary for preserving harmony
among affiliated institutions.
32. Education should be a great cohesive force in
developing integrity of the nation. Education develops
the ethos of the nation. Regulations are, therefore,
necessary to see that there are no divisive or
disintegrating forces in administration.”
(Emphasis supplied)
22.1.2 The conclusion arrived at by the learned Chief Justice was:-
“45. For these reasons the provisions contained in
Sections 40, 41, 33-A(1)(a), 33-A(1)(b), 51-A and 52-
A cannot be applied to minority institutions. These
provisions violate the fundamental rights of the
minority institutions.
46. The ultimate goal of a minority institution too
imparting general secular education is advancement
of learning. This Court has consistently held that it is
not only permissible but also desirable to regulate
everything in educational and academic matters for
achieving excellence and uniformity in standards of
education.
47. In the field of administration it is not reasonable to
claim that minority institutions will have complete
autonomy. Checks on the administration may be
necessary in order to ensure that the administration is
efficient and sound and will serve the academic needs
of the institution. The right of a minority to administer
its educational institution involves, as part of it, a
correlative duty of good administration.
48. The teachers and the taught form a world of their
own where everybody is a votary of learning. They
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should not be made to know any distinction. Their
harmony rests on dedicated and disciplined pursuit of
learning. The areas of administration of minorities
should be adjusted to concentrate on making learning
most excellent. That is possible only when all
institutions follow the motto that the institutions are
places for worship of learning by the students and the
teachers together irrespective of any denomination
and distinction.”
 (Emphasis supplied)
22.2 While agreeing with the view taken by the learned Chief Justice
with respect to aforestated provisions, Jaganmohan Reddy J., speaking for
himself and Alagiriswami J., also juxtaposed provisions in various statutes
which had come up for consideration before this Court from time to time.
As regards the opinion in Re: The Kerala Education Bill, 19579
, it was
observed:-
“The scope and ambit of the rights under Articles
29(1) and 30(1) were first considered and analysed by
this Court while giving its advice on the Presidential
Reference under Article 143 of the Constitution in Re
the Kerala Education Bill, 1957. The report which
was made to the President in that Reference, it is true,
is not binding on this Court in any subsequent matter
wherein in a concrete case the in fringement of the
rights under any analogous provision may be called in
question, though it is entitled to great weight. Under
Article 143 this Court expresses its opinion if it so
chooses and in some cases it might even decline to
express its opinion, vide In Re Levy of Estate Duty12
cited with approval by Das, C.J. in In re The Kerala
Education Bill, 1957. In some cases the opinion may
be based on certain stated contingencies or on some
assumed or hypothetical situations whereas in a
concrete case coming before this Court by way of an
12 1944 FCR 317
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appeal under Article 133, or by special leave under
Article 136 or by a petition under Article 32, the law
declared by it by virtue of Article 141 is binding on all
courts within the territory of India. Nonetheless the
exposition of the various facets of the rights under
Article 29(1) and Article 30(1) by Das, C.J. speaking
for the majority, with the utmost clarity, great
perspicuity and wisdom has been the text from which
this Court has drawn its sustenance in its subsequent
decisions. To the extent that this Court has applied
these principles to concrete cases there can be no
question of there being any conflict with what has
been observed by Das, C.J. The decisions rendered on
analogous provisions as those that are under challenge
in this case would prima facie govern these cases,
unless this larger Bench chooses to differ from them.”
22.3 Khanna, J. in his concurring opinion, considered the extent to
which regulations could be prescribed, as under:-
“90. We may now deal with the scope and ambit of
the right guaranteed by clause (1) of Article 30. The
clause confers a right on all minorities, whether they
are based on religion or language, to establish and
administer educational instructions of their choice.
The right conferred by the clause is in absolute terms
and is not subject to restrictions, as in the case of
rights conferred by Article 19 of the Constitution. The
right of the minorities to administer educational
institutions does not, however, prevent the making of
reasonable regulations in respect of those institutions.
The regulations have necessarily to be made in the
interest of the institution as a minority educational
institution. They have to be so designed as to make it
an effective vehicle for imparting education. The right
to administer educational institutions can plainly not
include the right to maladminister. Regulations can be
made to prevent the housing of an educational
institution in unhealthy surroundings as also to
prevent the setting up or continuation of an
educational institution without qualified teachers. The
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State can prescribe regulations to ensure the
excellence of the institution. Prescription of standards
for educational institutions does not militate against
the right of the minority to administer the institutions.
Regulations made in the true interests of efficiency of
instruction, discipline, health, sanitation, morality,
public order and the like may undoubtedly be
imposed. Such regulations are not restrictions on the
substance of the right which is guaranteed: they
secure the proper functioning of the institution, in
matters educational [see observations of Shah, J. in
Rev. Sidhajbhai Sabhai10 p. 850]. Further as observed
by Hidyatullah, C.J. in the case of Very Rev. Mother
Provincial4
 the standards concern the body politic and
are dictated by considerations of the advancement of
the country and its people. Therefore, if universities
establish syllabi for examinations they must be
followed, subject, however, to special subjects which
the institutions may seek to teach, and to a certain
extent the State may also regulate the conditions of
employment of teachers and the health and hygiene of
students. Such regulations do not bear directly upon
management as such although they may indirectly
affect it. Yet the right of the State to regulate
education, educational standards and allied matters
cannot be denied. The minority institutions cannot be
allowed to fall below the standards of excellence
expected of educational institutions, or under the
guise of exclusive right of management, to decline to
follow the general pattern. While the management
must be left to them, they may be compelled to keep
in step with others.
91. It is, in my opinion, permissible to make
regulations for ensuring the regular payment of
salaries before a particular date of the month.
Regulations may well provide that the funds of the
institution should be spent for the purposes of
education or for the betterment of the institution and
not for extraneous purposes. Regulations may also
contain provisions to prevent the diversion of funds of
institutions to the pockets of those incharge of
management or their embezzlement in any other
manner. Provisions for audit of the accounts of the
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institution would be permissible regulation. Likewise,
regulations may provide that no anti-national activity
would be permitted in the educational institutions and
that those employed as members of the staff should
not have been guilty of any activities against the
national interest. Minorities are as much part of the
nation as the majority, and anything that impinges
upon national interest must necessarily in its ultimate
operation affect the interests of all those who inhabit
this vast land irrespective of the fact whether they
belong to the majority or minority sections of the
population. It is, therefore, as much in the interest of
minorities as that of the majority to ensure that the
protection afforded to minority institutions is not used
as a cloak for doing something which is subversive of
national interests. Regulations to prevent anti-national
activities in educational institutions can, therefore, be
considered to be reasonable.
92. A regulation which is designed to prevent
maladministration of an educational institution cannot
be said to offend clause (1) of Article 30. At the
sametime it has to be ensured that under the power of
making regulations nothing is done as would detract
from the character of the institution as a minority
educational institution or which would impinge upon
the rights of the minorities to establish and administer
educational institutions of their choice. The right
conferred by Article 30(1) is intended to be real and
effective and not a mere pious and abstract sentiment;
it is a promise of reality and not a teasing illusion.
Such a right cannot be allowed to be whittled down
by any measure masquerading as a regulation. As
observed by this Court in the case of Rev. Sidhajbhai
Sabhai, regulations which may lawfully be imposed
either by legislative or executive action as a condition
of receiving grant or of recognition must be directed
to making the institution while retaining its character
as minority institution effective as an educational
institution. Such regulation must satisfy a dual test —
the test of reasonableness, and the test that it is
regulative of the educational character of the
institution and is conducive to making the institution
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an effective vehicle of education for the minority
community or other persons who resort to it.
… … …
94. If a request is made for the affiliation or
recognition of an educational institution, it is implicit
in the request that the educational institution would
abide by the regulations which are made by the
authority granting affiliation or recognition. The said
authority can always prescribe regulations and insist
that they should be complied with before it would
grant affiliation or recognition to an educational
institution. To deny the power of making regulations
to the authority concerned would result in robbing the
concept of affiliation or recognition of its real
essence. No institution can claim affiliation or
recognition until it conforms to a certain standard.
The fact that the institution is of the prescribed
standard indeed inheres in the very concept of
affiliation or recognition. It is, therefore, permissible
for the authority concerned to prescribe regulations
which must be complied with before an institution can
seek and retain affiliation and recognition. Question
then arises whether there is any limitation on the
prescription of regulations for minority educational
institutions. So far as this aspect is concerned, the
authority prescribing the regulations must bear in
mind that the Constitution has guaranteed a
fundamental right to the minorities for establishing
and administering their educational institutions.
Regulations made by the authority concerned should
not impinge upon that right. Balance has, therefore, to
be kept between the two objectives, that of ensuring
the standard of excellence of the institution and that of
preserving the right of the minorities to establish and
administer their educational institutions. Regulations
which embrace and reconcile the two objectives can
be considered to be reasonable.
… … …
103. Another conclusion which follows from what has
been discussed above is that a law which interferes
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with a minority’s choice of qualified teachers or its
disciplinary control over teachers and other members
of the staff of the institution is void as being violative
of Article 30(1). It is, of course, permissible for the
State and its educational authorities to prescribe the
qualifications of teachers, but once the teachers
possessing the requisite qualifications are selected by
the minorities for their educational institutions, the
State would have no right to veto the selection of
those teachers. The selection and appointment of
teachers for an educational institution is one of the
essential ingredients of the right to manage an
educational institution and the minorities can plainly
be not denied such right of selection and appointment
without infringing Article 30(1). In the case of Rev.
Father W. Proost11 this Court while dealing with
Section 48-A of the Bihar Universities Act observed
that the said provision completely took away the
autonomy of the governing body of the college and
virtually vested the control of the college in the
University Service Commission. The petitioners in
that case were, therefore, held entitled to the
protection of Article 30(1) of the Constitution. The
provisions of that section have been referred to earlier.
According to the section, subject to the approval of
University appointment, dismissals, removals,
termination of service or reduction in rank of teachers
of an affiliated college not belonging to the State
Government would have to be made by the governing
body of the college on the recommendation of the
University Service Commission. The section further
provided that the said Commission would be
consulted by the governing body of a college in all
disciplinary matters affecting teachers of the college
and no action would be taken against or any
punishment imposed upon a teacher of a college
otherwise than in conformity with the findings of the
Commission.
104. In the case of D.A.V. College which was
affiliated to the Guru Nanak University, Statute 17
framed under the Guru Nanak University (Amritsar)
Act inter alia provided that the staff initially appointed
shall be approved by the Vice-Chancellor and that all
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subsequent changes shall be reported to the University
for Vice-Chancellor’s approval. This Court held that
Statute 17 interfered with the right of management of
the petitioner colleges and, as such, offended Article
30(1).
105. Although disciplinary control over the teachers
of a minority educational institution would be with
the governing council, regulations, in my opinion, can
be made for ensuring proper conditions of service of
the teachers and for securing a fair procedure in the
matter of disciplinary action against the teachers.
Such provisions which are calculated to safeguard the
interest of teachers would result in security of tenure
and thus inevitably attract competent persons for the
posts of teachers. Such a provision would also
eliminate a potential cause of frustration amongst the
teachers. Regulations made for this purpose should be
considered to be in the interest of minority
educational institutions and as such they would not
violate Article 30(1).”
(Emphasis supplied)
22.4 In his concurring view, Mathew, J. speaking for himself and
Chandrachud, J. (as the learned Chief Justice, then was) also dealt with
the extent to which the regulations could be prescribed, as under:-
“174. We find it impossible to subscribe to the
proposition that State necessity is the criterion for
deciding whether a regulation imposed on an
educational institution takes away or abridges the
right under Article 30(1). If a legislature can impose
any regulation which it thinks necessary to protect
what in its view is in the interest of the State or
society, the right under Article 30(1) will cease to be a
fundamental right. It sounds paradoxical that a right
which the Constitution makers wanted to be absolute
can be subjected to regulations which need only
satisfy the nebulous and elastic test of State necessity.
The very purpose of incorporating this right in Part III
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of the Constitution in absolute terms in marked
contrast with the other fundamental rights was to
withdraw it from the reach of the majority. To subject
the right today to regulations dictated by the protean
concept of State necessity as conceived by the
majority would be to subvert the very purpose for
which the right was given.
175. What then are the additional regulations which
can legitimately be imposed upon an educational
institution established and administered by a religious
or linguistic minority which imparts general secular
education and seeks recognition or affiliation?
176. Recognition or affiliation is granted on the basis
of the excellence of an educational institution,
namely, that it has reached the educational standard
set up by the university. Recognition or affiliation is
sought for the purpose of enabling the students in an
educational institution to sit for an examination to be
conducted by the university and to obtain a degree
conferred by the university. For that purpose, the
students should have to be coached in such a manner
so as to attain the standard of education prescribed by
the university. Recognition or affiliation creates an
interest in the university to ensure that the educational
institution is maintained for the purpose intended and
any regulation which will subserve or advance that
purpose will be reasonable and no educational
institution established and administered by a religious
or linguistic minority can claim recognition or
affiliation without submitting to those regulations.
That is the price of recognition or affiliation: but this
does not mean that it should submit to a regulation
stipulating for surrender of a right or freedom
guaranteed by the Constitution, which is unrelated to
the purpose of recognition or affiliation. In other
words, recognition or affiliation is a facility which the
university grants to an educational institution, for the
purpose of enabling the students there to sit for an
examination to be conducted by the university in the
prescribed subjects and to obtain the degree conferred
by the university, and therefore, it stands to reason to
hold that no regulation which is unrelated to the
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purpose can be imposed. If, besides recognition or
affiliation, an educational institution conducted by a
religious minority is granted aid, further regulations
for ensuring that the aid is utilized for the purpose for
which it is granted will be permissible. The heart of
the matter is that no educational institution established
by a religious or linguistic minority can claim total
immunity from regulations by the legislature or the
university if it wants affiliation or recognition; but the
character of the permissible regulations must depend
upon their purpose. As we said, such regulations will
be permissible if they are relevant to the purpose of
securing or promoting the object of recognition or
affiliation. There will be border line cases where it is
difficult to decide whether a regulation really
subserves the purpose of recognition or affiliation.
But that does not affect the question of principle. In
every case, when the reasonableness of a regulation
comes up for consideration before the Court, the
question to be asked and answered is whether the
regulation is calculated to subserve or will in effect
subserve the purpose of recognition or affiliation,
namely, the excellence of the institution as a vehicle
for general secular education to the minority
community and to other persons who resort to it. The
question whether a regulation is in the general interest
of the public has no relevance, if it does not advance
the excellence of the institution as a vehicle for
 general secular education as, exhypothesi, the only
permissible regulations are those which secure the
effectiveness of the purpose of the facility, namely,
the excellence of the educational institutions in
respect of their educational standards. This is the
reason why this Court has time and again said that the
question whether a particular regulation is calculated
to advance the general public interest is of no
consequence if it is not conducive to the interests of
the minority community and those persons who resort
to it.
… … …
182. It is upon the principal and teachers of a college
that the tone and temper of an educational institution
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depend. On them would depend its reputation, the
maintenance of discipline and its efficiency in
teaching. The right to choose the principal and to have
the teaching conducted by teachers appointed by the
management after an overall assessment of their
outlook and philosophy is perhaps the most important
facet of the right to administer an educational
institution. We can perceive no reason why a
representative of the University nominated by the
Vice-Chancellor should be on the Selection
Committee for recruiting the Principal or for the
insistence of head of the department besides the
representative of the University being on the Selection
Committee for recruiting the members of the teaching
staff. So long as the persons chosen have the
qualifications prescribed by the University, the choice
must be left to the management. That is part of the
fundamental right of the minorities to administer the
educational institution established by them.”
(Emphasis supplied)
22.5 In his concurring opinion, Beg, J. (as the learned Chief Justice
then was) however struck a slightly different chord. At the outset he
stated:-
197. … … I would, however, like to point out that, as
rights and duties are correlative, it follows, from the
extent of this wider right of a minority under Article
30(1) to impart even general or non-denominational
secular education to those who may not follow its
culture or subscribe to its beliefs, that, when a
minority Institution decides to enter this wider
educational sphere of national education, it, by reason
of this free choice itself, could be deemed to opt to
adhere to the needs of the general pattern of such
education in the country, at least whenever that choice
is made in accordance with statutory provisions. Its
choice to impart an education intended to give a
secular orientation or character to its education
necessarily entails its assent to the imperative needs
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of the choice made by the State about the kind of
“secular” education which promotes national
integration or the elevating objectives set out in the
preamble to our Constitution, and the best way of
giving it. If it is part of a minority’s rights to make
such a choice it should also be part of its obligations,
which necessarily follow from the choice, to adhere to
the general pattern. The logical basis of such a choice
is that the particular minority Institution, which
chooses to impart such general secular education,
prefers that higher range of freedom where, according
to the poet Rabindranath Tagore, “the narrow
domestic walls” which constitute barriers between
various sections of the nation will crumble and fall.
… …”
22.5.1 In his view, third set of provisions namely Sections 51A and
52A did not constitute any unreasonable encroachment on the essence of
the rights under Article 30(1) of the Constitution. It was observed:-
“212. Section 51-A of the Act appears to me to lay
down general conditions for the dismissal, removal,
reduction in rank and termination of services of
members of the staff of all colleges to which it
applies. Again, we have not to consider here either the
wisdom or unwisdom of such a provision or the
validity of any part of Section 51-A of the Act on the
ground that it violates any fundamental right other
than the ones conferred by Article 30(1) of the
Constitution. If, as I have indicated above, a greater
degree of interference with the right to administer or
manage an institution can be held to be permissible as
a logical consequence of the exercise of an option of a
minority for an institution governed by a statute, with
all its benefits as well as disadvantages, it seems to
me that provisions of Section 51-A do not constitute
an unreasonable encroachment on the essence of
rights of a minority institution protected by Article
30(1) of the Constitution which consists of freedom of
choice. For similar reasons, I do not think that Section
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52-A of the Act constitutes an infringement of the
special minority rights under Article 30(1) of the
Constitution when the institution opts for a statutory
right which necessarily involves statutory restrictions.
Of course, if these provisions could be held to be
invalid on any grounds as against all affiliated
colleges, whether they are administered by minorities
or majorities in a State, they could be held to be
invalid against the petitioning College too on those
grounds. But, as I have already said, we are not
concerned here with such grounds or questions at all.”
22.5.2 Beg, J., then considered all previous decisions of this Court
and made following observations:-
“221. Evidently, what was meant was that the right to
exclusive management of the institution is separable
from the right to determine the character of education
and its standards. This may explain why “standards”
of education were spoken as “not part of
management” at all. It meant that the right to manage,
having been conferred in absolute terms, could not be
interfered with at all although the object of that
management could be determined by a general pattern
to be laid down by the State which could prescribe the
syllabi and standards of education. Speaking for
myself, I find it very difficult to separate the objects
and standards of teaching from a right to determine
who should teach and what their qualifications should
be. Moreover, if the “standards of education” are not
part of management, it is difficult to see how they are
exceptions to the principle of freedom of management
from control. Again, if what is aimed at directly is to
be distinguished from an indirect effect of it, the
security of tenure of teachers and provisions intended
to ensure fair and equitable treatment for them by the
management of an institution would also not be
directly aimed at interference with its management.
They could more properly be viewed as designed to
improve and ensure the excellence of teachers
available at the institution, and, therefore, to raise the
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general standard of education. I think that it is enough
for us to distinguish this case on the ground that the
provisions to be interpreted by us are different,
although, speaking for myself, I feel bound to say,
with great respect, that I am unable to accept every
proposition found stated there as correct. In that case,
the provisions of the Kerala University Act 9 of 1969,
considered there were inescapable for the minority
institutions which claimed the right to be free from
their operation. As I have already observed, in the
case before us, Section 38-B of the Act provides the
petitioning College before us with a practically certain
mode of escape from the compulsiveness of
provisions other than Sections 5, 40 and 41 of the Act
if claims made on its behalf are correct.
… … …
229. It may be that Article 30(1) of the Constitution is
a natural result of the feeling of insecurity entertained
by the minorities which had to be dispelled by a
guarantee which could not be reduced to a “teasing
illusion”. But, is it anything more than an illusion to
view the choice of a minority as to what it does with
its educational institution as a matter of unconcern
and indifference to the whole organised society which
the State represents?”
… … …
232. Even if Article 30(1) of the Constitution is held
to confer absolute and unfettered rights of
management upon minority institutions, subject only
to absolutely minimal and negative controls in the
interests of health and law and order, it could not be
meant to exclude a greater degree of regulation and
control when a minority institution enters the wider
sphere of general secular and non-denominational
education, largely employs teachers who are not
members of the particular minority concerned, and
when it derives large parts of its income from the fees
paid by those who are not members of the particular
minority in question. Such greater degree of control
could be justified by the need to secure the interests of
those who are affected by the management of the
minority institution and the education it imparts but
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who are not members of the minority in management.
In other words, the degree of reasonably permissible
control must vary from situation to situation. For the
reasons already given above, I think that, apart from
Sections 5, 40 and 41 of the Act, which directly and
unreasonably impinge upon the rights of the
petitioning minority managed college, protected by
Article 30(1) of the Constitution, I do not think that
the other provisions have that effect. On the situation
under consideration before us, the minority institution
affected by the enactment has, upon the claims put
forward on its behalf, a means of escape from the
impugned provisions other than Sections 5, 40 and 41
of the Act by resorting to Section 38-B of the Act.”
22.6 In his dissenting view, Dwivedi, J. expressed with regard to
the extent of regulatory power as under:-
“266. The extent of regulatory power of the State
would vary according to various types of educational
institutions established by religious and linguistic
minorities. Educational institutions may be classified
in several ways: (1) According to the nature of
instruction which is being imparted by the minorities.
It may be religious, cultural and linguistic instruction
or secular general education or mixed; (2) According
to grant of aid and recognition by the State. Some
institutions may receive aid; the others may not.
Similarly, some institutions may receive recognition;
the others may not. There may be some others which
may receive both aid and recognition; some others
may receive neither aid nor recognition. (3)
According to the standard of secular general
education which is being imparted in the institutions
— primary, secondary and higher. (4) According to
the nature of education such as military academy,
marine engineering in which the State is vitally
interested for various reasons.
267. The extent of regulatory power may vary from
class to class as well as within a class. For instance,
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institutions receiving aid and recognition may be
subject to greater regulation than those which receive
neither. Similarly, institutions imparting secular
general education may be subject to greater regulation
than those which are imparting religious, cultural and
linguistic instruction solely.
268. An educational institution would consist of: (1)
the managing body of the institution, (2) teaching
staff, (3) non-teaching staff, (4) students; and (5)
property of various kinds. Here again, the extent of
the regulatory power may vary from one constituent
to another. For instance, the teaching staff and
property may be subject to greater regulation than the
composition of the managing body. Plainly, no
minority educational institution can be singled out for
treatment different from one meted out to the majority
educational institution. A regulation meeting out such
a discriminatory treatment will be obnoxious to
Article 30(1).”
22.7 The operative part of the Order passed by this Court was:-
“304. By majority Sections 33-A, 40, 41, 51-A(1)(b),
51-A(2)(b) and 52-A of the Gujarat University Act,
1949 as amended do not apply to institutions
established and administered by linguistic and
religious minorities. … … …”
23. In The Gandhi Faiz-e-am College, Shahjahanpur v. University of
Agra and Another13, a Bench of three Judges of this Court considered
whether Statute 14A framed by University of Agra infringed fundamental
rights of the minority community under Article 30 of the Constitution. The
facts as set out in para 3 were as under:-
13 (1975) 2 SCC 283 
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“3. The appellant is a registered society formed by the
members of the Muslim community at Shahjahanpur.
Indubitably, the community ranks as a minority in the
country and the educational institution run by it has
been found to be what may loosely be called a
“minority institution”, within the constitutional
compass of Article 30. The earlier history of the
institution need not detain us and a rapid glance at its
evolution is enough. The A.V. Middle School was the
offspring of the effort of the Muslim minority resident
in Shahjahanpur district. It, later became a high
school and afterwards attained the status of an
Intermediate college. Eventually it blossomed into a
degree college affiliated to the University of Agra. In
1948, on the assassination of the Father of the Nation,
this college was commemoratively renamed as
Gandhi Faiz-e-am College. In August 1964, an
application was made on behalf of the college
management to the University for permission to start
teaching in courses of study including Sociology,
Sanskrit, Arabic, Military Studies, Drawing and
Painting. The University entertained the thought that a
new organisational discipline must be brought into the
institution and insisted, as a condition of recognition
of these additional subjects as course of study, on
certain mutations in the administrative body of the
college. The bone of contention before us, as was
before the High Court, is that this prescription by the
University, in tune with Statute 14A framed by it, is
an invasion of the fundamental right guaranteed to the
minority community under Article 30 of the
Constitution of India. The High Court has negatived
the plea of the management and the appeal issues
from that decision.”
23.1 Statute 14A as quoted in para 6 was to the following effect:-
“14A. Each college, already affiliated or when
affiliated, which is not maintained exclusively by
Government must be under the Management of a
regular constituted Governing body (which term
includes Managing Committee) on which the staff of
the college shall be represented by the Principal of the
college and at least one representative of the teachers
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of the college to be appointed by rotation in order of
seniority determined by length of service in the
college, who shall hold office for one academic year.”
23.2 Krishna Iyer, J. speaking for himself and Gupta, J. found the
provision calculated to promote excellence of the Institution and therefore
rejected the challenge. The relevant observations were:-
“16. The discussion throws us back to a closer study
of Statute 14A to see if it cuts into the flesh of the
management’s right or merely tones up its health and
habits. The two requirements the University asks for
are that the managing body (whatever its name) must
take in (a) the Principal of the College; (b) its
seniormost teacher. Is this desideratum dismissible as
biting into the autonomy of management or tenable as
ensuring the excellence of the institution without
injuring the essence of the right? On a careful
reflection and conscious of the constitutional
dilemma, we are inclined to the view that this case
falls on the valid side of the delicate line. Regulation
which restricts is bad; but regulation which facilitates
is good. Where does this fine distinction lie? No rigid
formula is possible but a flexible test is feasible.
Where the object and effect is to improve the tone and
temper of the administration without forcing on it a
stranger, however superb his virtues be, where the
directive is not to restructure the governing body but
to better its performance by a marginal catalytic
induction, where no external authority’s fiat or
approval or outside nominee is made compulsory to
validate the Management Board but inclusion of an
internal key functionary appointed by the autonomous
management alone is asked for, the provision is
salutary and saved, being not a diktat eroding the
freedom of the freedom.
… … …
24. In all these cases administrative autonomy is
imperilled transgressing purely regulatory limits. In
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our case autonomy is virtually left intact and
refurbishing, not restructuring, is prescribed. The core
of the right is not gouged out at all and the regulation
is at once reasonable and calculated to promote
excellence of the institution — a text book instance of
constitutional conditions.”
23.3. Mathew, J. authored a dissenting opinion. Relying upon various
views expressed in Ahmedabad St. Xavier’s College5 including one
rendered by the learned Judge himself, it was observed :-
“41. The determination of the composition of the
body to administer the educational institution
established by a religious minority must be left to the
minority as that is the core of the right to administer.
Regulations to prevent maladministration by that
body are permissible. As the right to determine the
composition of the body which will administer the
educational institution is the very essence of the right
to administer guaranteed to the religious or linguistic
minority under Article 30(1), any interference in that
area by an outside authority cannot be anything but an
abridgment of that right. The religious or linguistic
minority must be given the freedom to constitute the
agency through which it proposes to administer the
educational institution established by it as that is what
Article 30(1) guarantees. The right to shape its
creation is one thing: the right to regulate the manner
in which it would function after it has come into being
is another. Regulations are permissible to prevent
maladministration but they can only relate to the
manner of administration after the body which is to
administer has come into being.
42. The provisions of Statute 14A are in pari materia
with those of Section 33-A(1)(a) of the Act which fell
for consideration in Ahmedabad St. Xavier’s College
case (supra) except that only the principal and the
seniormost member of the staff alone are required to
be included in the managing committee of the college
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in question here. But, in principle, that makes no
difference. The principle, as I said, is that the minority
community has the exclusive right to vest the
administration of the college in a body of its own
choice, and any compulsion from an outside authority
to include any other person in that body is an
abridgment of its fundamental right to administer the
educational institution.”
23.4 In terms of the decision of the majority, the challenge was negated
and Statute 14A was not found to be vulnerable or void.
24. In Lily Kurian v. Sr. Lewina and Others14
, a Bench of five Judges
of this Court was called upon to consider whether the appellate power
conferred upon the Vice Chancellor of the University15 would encroach
upon the rights of a minority institution to enforce and ensure discipline
over its teachers.
The matter was considered by this Court as under:-
“51. An analysis of the judgments in St. Xaviers
College case clearly shows that seven out of nine
judges held that the provisions contained in clause (b)
of sub-sections (1) and (2) of Section 51-A of the Act
were not applicable to an educational institution
established and managed by religious or linguistic
minority as they interfere with the disciplinary control
of the management over the staff of its educational
institutions. The reasons given by the majority were
that the power of the management to terminate the
services of any member of the teaching or other
academic and non-academic staff was based on the
14 (1979) 2 SCC 124
15 By Ordinance 33 against any order passed by the Management taking disciplinary
action against a teacher.
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relationship between an employer and his employees
and no encroachment could be made on this right to
dispense with their services under the contract of
employment, which was an integral part of the right to
administer, and that these provisions conferred on the
Vice-Chancellor or any other officer of the University
authorised by him, uncanalised, unguided and
unlimited power to veto the actions of the
management. According to the majority view, the
conferral of such blanket power on the ViceChancellor and his nominee was an infringement of
the right of administration guaranteed under Article
30(1) to the minority institutions, religious and
linguistic. The majority was accordingly of the view
that the provisions contained in clause (b) of subsections (1) and (2) of Section 51-A of the Act had the
effect of destroying the minority institution’s
disciplinary control over the teaching and nonteaching staff of the college as no punishment could
be inflicted by the management on a member of the
staff unless it gets approval from an outside authority
like the Vice-Chancellor or an officer of the
University authorised by him. On the contrary, the
two dissenting Judges were of the view that these
provisions were permissive regulatory measures.
52. The power of appeal conferred on the ViceChancellor under Ordinance 33(4) is not only a grave
encroachment on the institution’s right to enforce and
ensure discipline in its administrative affairs but it is
uncanalised and unguided in the sense that no
restrictions are placed on the exercise of the power.
The extent of the appellate power of the ViceChancellor is not defined, and, indeed, his powers are
unlimited. The grounds on which the Vice-Chancellor
can interfere in such appeals are also not defined. He
may not only set aside an order of dismissal of a
teacher and order his reinstatement, but may also
interfere with any of the punishments enumerated in
Items (ii) to (v) of Ordinance 33(2), that is to say, he
can even interfere against the infliction of minor
punishments. In the absence of any guide-lines, it
cannot be held that the power of the Vice-Chancellor
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under Ordinance 33(4) was merely a check on
maladministration.
53. As laid down by the majority in St. Xaviers
College case, such a blanket power directly interferes
with the disciplinary control of the managing body of
a minority educational institution over its teachers.
The majority decision in St. Xaviers College case
squarely applies to the facts of the present case and
accordingly it must be held that the impugned
Ordinance 33(4) of the University of Kerala is
violative of Article 30(1) of the Constitution. If the
conferral of such power on an outside authority like
the Vice-Chancellor, which while maintaining the
formal character of a minority institution destroys the
power of administration, that is, its disciplinary
control, is held justifiable because it is in the public
and national interest, though not in its interest as an
educational institution, the right guaranteed by Article
30(1) will be, to use the well-known expression, a
“teasing illusion”, a “promise of unreality”.
25. In All Saints High School, Hyderabad and Others v. Government
of Andhra Pradesh and Others16
, the question that arose for consideration
before a Bench of three Judges of this Court, was whether certain
provisions of Andhra Pradesh Recognised Private Educational Institutions
(Control) Act, 1975 offended fundamental rights conferred on minorities
by Article 30(1). In terms of Sections 3(1) and 3(2), no teacher employed
in any private educational institution could be dismissed or removed or
reduced in rank except with the prior approval of the competent authority;
and in terms of Section 3(2) such approval could be granted if the
16 (1980) 2 SCC 478
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competent authority was satisfied that there were adequate and reasonable
grounds. Section 3(3)(a) provided that no teacher could be placed under
suspension except when an enquiry into the gross misconduct of such
teacher was contemplated and as per terms of Section 3(3)(b), no
suspension could remain in force for more than two months if the enquiry
was not completed within that period.
25.1. Chandrachud, C.J. agreed with Fazal Ali, J. that Sections
3(1) and 3(2) would offend Article 30(1) and as such could not be applied
to minority institutions. The learned Chief Justice however did not agree
with Faizal Ali, J. insofar as Sections 3(3)(a) and 3(3)(b) but agreed with
Kailasam, J. to hold that those provisions did not offend Article 30(1).
Faizal Ali, J. had found all the provisions to be invalid while Kailasam, J.
had found the concerned provisions to be valid and not violative of Article
30(1) of the Constitution.
26. In Frank Anthony Public School Employees’ Assoication v.
Union of India and others17 validity of Section 12 of Delhi School
Education Act on the strength of which certain provisions of said Act
would not apply to an unaided minority school, was under challenge. It
was submitted by the petitioners that the teachers and other employees
17 (1986) 4 SCC 707
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working in an unaided school were entitled to same pay-scale, allowances
and benefits as were enjoyed by persons employed in schools governed by
the provisions of said Act and to the extent Section 12 excluded
applicability of some of the provisions of the Act, said Section was hit by
Article 14 of the Constitution. The argument raised on behalf of the
institution was :-
“14. … …the right to appoint members of staff being
an undoubted right of the management and the right to
stipulate their salaries and allowances etc. being part
of their right to appoint, such right could not be taken
away from the management of a minority institution.”
26.1 While allowing the petition this Court observed:
“16. The excellence of the instruction provided by an
institution would depend directly on the excellence of
the teaching staff, and in turn, that would depend on
the quality and the contentment of the teachers.
Conditions of service pertaining to minimum
qualifications of teachers, their salaries, allowances
and other conditions of service which ensure security,
contentment and decent living standards to teachers
and which will consequently enable them to render
better service to the institution and the pupils cannot
surely be said to be violative of the fundamental right
guaranteed by Article 30(1) of the Constitution. The
management of a minority Educational Institution
cannot be permitted under the guise of the
fundamental right guaranteed by Article 30(1) of the
Constitution, to oppress or exploit its employees any
more than any other private employee. Oppression or
exploitation of the teaching staff of an educational
institution is bound to lead, inevitably, to discontent
and deterioration of the standard of instruction
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imparted in the institution affecting adversely the
object of making the institution an effective vehicle of
education for the minority community or other
persons who resort to it. The management of minority
institution cannot complain of invasion of the
fundamental right to administer the institution when it
denies the members of its staff the opportunity to
achieve the very object of Article 30(1) which is to
make the institution an effective vehicle of education.
(Emphasis supplied)
… … …
23. We must refer to the submissions of Mr Frank
Anthony regarding the excellence of the institution
and the fear that the institution may have to close
down if they have to pay higher scales of salary and
allowances to the members of the staff. As we said
earlier the excellence of the institution is largely
dependent on the excellence of the teachers and it is
no answer to the demand of the teachers for higher
salaries to say that in view of the high reputation
enjoyed by the institution for its excellence, it is
unnecessary to seek to apply provisions like Section
10 of the Delhi School Education Act to the Frank
Anthony Public School. On the other hand, we should
think that the very contribution made by the teachers
to earn for the institution the high reputation that it
enjoys should spur the management to adopt at least
the same scales of pay as the other institutions to
which Section 10 applies. Regarding the fear
expressed by Shri Frank Anthony that the institution
may have to close down we can only hope that the
management will do nothing to the nose to spite the
face, merely to “put the teachers in their proper
place”. The fear expressed by the management here
has the same ring as the fear expressed invariably by
the management of every industry that disastrous
results would follow which may even lead to the
closing down of the industry if wage scales are
revised.”
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27. In Bihar State Madarasa Education Board, Patna v. Madarasa
Hanfia Arabic College, Jamalia and others18 the declaration by the High
Court that Section 7(2)(n) was unconstitutional as it conferred power on
the Board to dissolve the Managing Committee of a Madarasa, was under
challenge. The decision was upheld by this Court observing as under:
“6. The question which arises for consideration is
whether Section 7(2)(n) which confers power on the
Board to dissolve the Managing Committee of an
aided and recognised Madarasa institution violates the
minorities constitutional right to administer its
educational institution according to their choice. This
Court has all along held that though the minorities
have right to establish and administer educational
institution of their own choice but they have no right
to maladminister and the State has power to regulate
management and administration of such institutions in
the interest of educational need and discipline of the
institution. Such regulation may have indirect effect
on the absolute right of minorities but that would not
violate Article 30(1) of the Constitution as it is the
duty of the State to ensure efficiency in educational
institutions. The State has, however, no power to
completely take over the management of a minority
institution. Under the guise of regulating the
educational standards to secure efficiency in
institution, the State is not entitled to frame rules or
regulations compelling the management to surrender
its right of administration. In State of Kerala v. Very
Rev. Mother Provincial, Section 63(1) of the Kerala
University Act, 1969 which conferred power on the
government to take over the management of a
minority institution on its default in carrying out the
directions of the State Government was declared ultra
vires on the ground that the provisions interfered with
the constitutional right of a minority to administer its
institution. Minority institutions cannot be allowed to
18 (1990) 1 SCC 428
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fall below the standard of excellence on the pretext of
their exclusive right of management but at the same
time their constitutional right to administer their
institutions cannot be completely taken away by
superseding or dissolving Managing Committee or by
appointing ad hoc committees in place thereof. In the
instant case Section 7(2)(n) is clearly violative of
constitutional right of minorities under Article 30(1)
of the Constitution insofar as it provides for
dissolution of Managing Committee of a Madarasa.
We agree with the view taken by the High Court.”
28. In St. Stephen’s College vs. University of Delhi19 a Bench of five
Judges of this Court had an occasion to consider the admission process
adopted by two aided minority institutions viz. St. Stephen’s College at
Delhi and Allahabad Agricultural Institute at Naini. The factual context as
summed-up in the majority judgment authored by Shetty, J., was as under:-
“68. It is not in dispute that St. Stephen’s College and
Allahabad Agricultural Institute are receiving grantin-aid from the government. St. Stephen’s College
gives preference to Christian students. The Allahabad
Agricultural Institute reserves 50 per cent of the seats
for Christian students. The Christian students
admitted by preference or against the quota reserved
are having less merit in the qualifying examination
than the other candidates. The other candidsates with
more merit are denied admission on the ground that
they are not Christians.
69. It was argued for the University and the Students
Union that since both the institutions are receiving
State aid, the institutional preference for admission
based on religion is violative of Article 29(2) of the
Constitution. The institutions shall not prefer or deny
19 (1992) 1 SCC 558
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admission to candidates on ground of religion. For
institutions, on the other hand, it was claimed that any
preference given to the religious minority candidates
in their own institutions cannot be a discrimination
falling under Article 29(2). The institutions are
established for the benefit of their community and if
they are prevented from admitting their community
candidates, the purpose of establishing the institutions
would be defeated. The minorities are entitled to
admit their candidates by preference or by
reservation. They are also entitled to admit them to
the exclusion of all others and that right flows from
the right to establish and administer educational
institutions guaranteed under Article 30(1).”
28.1 The majority judgment dealt with the submissions raised by the
institution as under:-
“80. Equally, it would be difficult to accept the second
submission that the minorities are entitled to establish
and administer educational institutions for their
exclusive benefit. The choice of institution provided
in Article 30(1) does not mean that the minorities
could establish educational institution for the benefit
of their own community people. Indeed, they cannot.
It was pointed out in Re, Kerala Education Bill that
the minorities cannot establish educational institution
only for the benefit of their community. If such was
the aim, Article 30(1) would have been differently
worded and it would have contained the words “for
their own community”. In the absence of such words
it is legally impermissible to construe the article as
conferring the right on the minorities to establish
educational institution for their own benefit.
81. Even in practice, such claims are likely to be met
with considerable hostility. It may not be conducive to
have a relatively homogeneous society. It may lead to
religious bigotry which is the bane of mankind. In the
nation building with secular character sectarian
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schools or colleges, segregated faculties or
universities for imparting general secular education
are undesirable and they may undermine secular
democracy. They would be inconsistent with the
central concept of secularism and equality embedded
in the Constitution. Every educational institution
irrespective of community to which it belongs is a
‘melting pot’ in our national life. The students and
teachers are the critical ingredients. It is there they
develop respect for, and tolerance of, the cultures and
beliefs of others. It is essential therefore, that there
should be proper mix of students of different
communities in all educational institutions.”
28.2 The relaxation given by St. Stephen’s College to Christian
students was dealt with as under:-
“50. To Christian students, relaxation up to 10 per
cent is given. The Scheduled Castes/Scheduled Tribes
candidates who are having a minimum of 50 per cent
of marks are called for interview for selection to
Honours courses. For B.A. pass course, a further
concession to them is granted and the qualifying
marks are reduced even below 50 per cent. As far as
sportsmen and sportswomen are concerned, national
or State level players are given concession normally
up to 10 per cent and in exceptional cases up to 15 per
cent or even more. However, a Christian student, who
is below the cut-off percentage by more than 10 per
cent is never called for interview.
51. The actual working of the concession given by the
College and the result achieved thereon in several
years are set out in Annexure I to Writ Petition No.
1868 of 1980. The Christian students who get
concession up to 10 per cent and thereby get
preferential admission are only 6 per cent to 10 per
cent. They are also admitted in accordance with the
standard prescribed by the University and none who
falls below the standard has ever been admitted to the
College.”
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28.3 The majority Judgment, then, considered the matter from the
perspective of “Rights of Minorities and Balancing Interest” and
observed:-
“101. Laws carving out the rights of minorities in
Article 30(1) however, must not be arbitrary,
invidious or unjustified; they must have a reasonable
relation between the aim and the means employed.
The individual rights will necessarily have to be
balanced with competing minority interests. In
Sidhajbhai case10
 the government order directing the
minority run college to reserve 80 per cent of seats for
government nominees and permitting only 20 per cent
of seats for the management with a threat to withhold
the grant-in-aid and recognition was struck down by
the Court as infringing the fundamental freedom
guaranteed by Article 30(1). Attention may also be
drawn to Article 337 of the Constitution which
provided a special concession to Anglo-Indian
community for ten years from the commencement of
the Constitution. Unlike Article 30(2) it conferred a
positive right on the Anglo-Indian community to get
grants from the government for their educational
institutions, but subject to the condition that at least
40 per cent of annual admission were made available
to members of other communities.
102. In the light of all these principles and factors,
and in view of the importance which the Constitution
attaches to protective measures to minorities under
Article 30(1), the minority aided educational
institutions are entitled to prefer their community
candidates to maintain the minority character of the
institutions subject of course to conformity with the
University standard. The State may regulate the intake
in this category with due regard to the need of the
community in the area which the institution is
intended to serve. But in no case such intake shall
exceed 50 per cent of the annual admission. The
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minority institutions shall make available at least 50
per cent of the annual admission to members of
communities other than the minority community. The
admission of other community candidates shall be
done purely on the basis of merit.”
28.4 It was also observed that regulations which serve the interest of
students and teachers and preserve the uniformity in standards of
education amongst the affiliated institutions could validly be made. The
relevant discussion in para 59 was as under:-
“59. The need for a detailed study on this aspect is
indeed not necessary. The right to minorities whether
religious or linguistic, to administer educational
institutions and the power of the State to regulate
academic matters and management is now fairly well
settled. The right to administer does not include the
right to maladminister. The State being the controlling
authority has right and duty to regulate all academic
matters. Regulations which will serve the interests of
students and teachers, and to preserve the uniformity
in standards of education among the affiliated
institutions could be made. The minority institutions
cannot claim immunity against such general pattern
and standard or against general laws such as laws
relating to law and order, health, hygiene, labour
relations, social welfare legislations, contracts, torts
etc. which are applicable to all communities. So long
as the basic right of minorities to manage educational
institution is not taken away, the State is competent to
make regulatory legislation. Regulations, however,
shall not have the effect of depriving the right of
minorities to educate their children in their own
institution. That is a privilege which is implied in the
right conferred by Article 30(1)”.
(Emphasis supplied)

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28.5 The dissenting opinion of Kasliwal, J. quoted a passage from
the Constituent Assembly Debates (CAD) touching upon the matter
in issue as under :-
“137. These were Articles 23(1) on the one hand and
23(3)(a) and 23(3)(b) on the other hand in the Draft
Constitution. Firstly, Dr B.R. Ambedkar said in
relation to draft Article 23(2) corresponding to the
present Article 28 of the Constitution that even in
relation to Articles 30 and 29 the State was
completely free to give or not to give aid to the
educational institutions of the religious or linguistic
minorities. He said20:
“Now, with regard to the second clause I think it
has not been sufficiently well understood. We
have tried to reconcile the claim of a community
which has started educational institutions for the
advancement of its own children either in
education or in cultural matters, to permit to
give religious instruction in such institutions;
notwithstanding the fact that it receives certain
aid from the State. The State, of course, is free
to give aid, is free not to give aid; the only
limitation we have placed is this, that the State
shall not debar the institution from claiming aid
under its grant-in-aid code merely on the ground
that it is run and maintained by a community
and not maintained by a public body. We have
there provided also a further qualification, that
while it is free to give religious instruction in
the institution and the grant made by the State
shall not be a bar to the giving of such
instruction, it shall not give instruction to, or
make it compulsory upon, the children
belonging to other communities unless and until
they obtain the consent of the parents of these
20 VII CAD 884
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children. That, I think, is a salutary provision. It
performs two functions…
Shri H.V. Kamath: On a point of clarification what
about institutions and schools run by a community or
a minority for its own pupils — not a school where all
communities are mixed but a school run by the
community for its own pupils?
The Hon’ble Dr B.R. Ambedkar: If my friend, Mr
Kamath will read the other article he will see that
once an institution, whether maintained by the
community or not, gets a grant, the condition is that it
shall keep the school open to all communities. That
provision he has not read.”
138. He reaffirmed the freedom of the State to give or
not to give aid to these schools when directly referring
to draft Article 23 which is the precursor of the
present Articles 29 and 30 as follows21:
“I think another thing which has to be borne
in reading Article 23 is that it does not impose
any obligation or burden upon the State. It
does not say that, when for instance the
Madras people come to Bombay, the Bombay
Government shall be required by law to
finance any project of giving education either
in Tamil language or in Andhra language or
any other language. There is no burden cast
upon the State. The only limitation that is
imposed by Article 23 is that if there is a
cultural minority which wants to preserve its
language, its script and its culture, the State
shall not by law impose upon it any other
culture which may be either local or
otherwise.”
And, went on to observe that once an institution was receiving aid,
“it must abide by the rigor of Article 29(2) in the matter of admission of
21 VII CAD 923
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students in the college” and “as already held by me, St. Stephen’s College
and Allahabad Agricultural Institute are not entitled to claim any
preferential right or reservation in favour of students of Christian
community as they are getting grant-in-aid and as such I do not consider it
necessary to labour any more on the question of deciding as to what
percentage can be considered as reasonable”
29. We must also refer to two decisions of this Court after the decision
in Ahmedabad St. Xaviers College5
 where the appointment of Principal of
a minority educational institution was in question.
29.1 In Board of Secondary Education and Teachers Training v. Jt.
Director of Public Instructions, Sagar and others22, a Bench of two
Judges of this Court observed:
“3. The decisions of this Court make it clear that in
the matter of appointment of the Principal, the
management of a minority educational institution has
a choice. It has been held that one of the incidents of
the right to administer a minority educational
institution is the selection of the Principal. Any rules
which take away this right of the management have
been held to be interfering with the right guaranteed
by Article 30 of the Constitution. In this case, both
Julius Prasad selected by the management and the
third respondent are qualified and eligible for
appointment as Principal according to rules. The
22 (1998) 8 SCC 555
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question is whether the management is not entitled to
select a person of their choice. The decisions of this
Court including the decision in State of Kerala v. Very
Rev. Mother Provincial and Ahmedabad St. Xavier’s
College Society v. State of Gujarat make it clear that
this right of the minority educational institution
cannot be taken away by any rules or regulations or
by any enactment made by the State. We are,
therefore, of the opinion that the High Court was not
right in holding otherwise. The State has undoubtedly
the power to regulate the affairs of the minority
educational institutions also in the interest of
discipline and excellence. But in that process, the
aforesaid right of the management cannot be taken
away, even if the Government is giving hundred per
cent grant. We need not go into any other question in
this appeal.”
(Emphasis supplied)

29.2 In N. Ammad v. Manager, Emjay High School and others23 a
Bench of two Judges of this Court, while dealing with the issue “whether
the management of a minority school was free to choose and appoint any
qualified person as Headmaster” observed as under:
“18. Selection and appointment of Headmaster in a
school (or Principal of a college) are of prime
importance in administration of that educational
institution. The Headmaster is the key post in the
running of the school. He is the hub on which all the
spokes of the school are set around whom they rotate
to generate result. A school is personified through its
Headmaster and he is the focal point on which
outsiders look at the school. A bad Headmaster can
spoil the entire institution, an efficient and honest
Headmaster can improve it by leaps and bounds. The
functional efficacy of a school very much depends
upon the efficiency and dedication of its Headmaster.
This pristine precept remains unchanged despite many
23 (1998) 6 SCC 674
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changes taking place in the structural patterns of
education over the years.
19. How important is the post of Headmaster of a
school has been pithily stated by a Full Bench of the
Kerala High Court in Aldo Maria Patroni v. E.C.
Kesavan. Chief Justice M.S. Menon has, in a style
which is inimitable, stated thus:
“The post of the headmaster is of pivotal
importance in the life of a school. Around him
wheels the tone and temper of the institution;
on him depends the continuity of its
traditions, the maintenance of discipline and
the efficiency of its teaching. The right to
choose the headmaster is perhaps the most
important facet of the right to administer a
school, and we must hold that the imposition
of any trammel thereon — except to the
extent of prescribing the requisite
qualifications and experience — cannot but
be considered as a violation of the right
guaranteed by Article 30(1) of the
Constitution. To hold otherwise will be to
make the right ‘a teasing illusion, a promise
of unreality’.”
20. The importance of the key role which a
Headmaster plays in the school cannot be better
delineated than that. The nine-Judge Bench in the
Ahmedabad St. Xavier’s College Society has
highlighted the importance of the role of the Principal
of a college. In support of majority view in that
decision K.K. Mathew, J. has observed thus: (SCC pp.
815-16, para 182)
“182. It is upon the principal and teachers of a
college that the tone and temper of an
educational institution depend. On them would
depend its reputation, the maintenance of
discipline and its efficiency in teaching. The
right to choose the principal and to have the
teaching conducted by teachers appointed by
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the management after an overall assessment of
their outlook and philosophy is perhaps the
most important facet of the right to administer
an educational institution.”
21. H.R. Khanna, J. has adopted a still broader view
that even selection of teachers is of great importance
in the right to manage a school. Learned Judge has
stated thus: (SCC p. 789, para 103)
“The selection and appointment of teachers for
an educational institution is one of the essential
ingredients of the right to manage an
educational institution and the minorities can
plainly be not denied such right of selection
and appointment without infringing Article
30(1).”
 22. Krishna Iyer, J. who dissented from the majority
view in Gandhi Faiz-E-Am College v. University of
Agra has, nevertheless, emphasised the importance of
the post of the Principal in the following words: (SCC
p. 293, para 21)
“21. An activist principal is an asset in
discharging these duties which are
inextricably interlaced with academic
functions. The principal is an invaluable
insider — the Management’s own choice —
not an outsider answerable to the ViceChancellor. He brings into the work of the
Managing Committee that intimate
acquaintance with educational operations and
that necessary expression of student-teacher
aspirations and complaints which are so
essential for the minority institution to
achieve a happy marriage between
individuality and excellence.”
23. Whatever is said about the importance of the post
of Principal of a college vis-à-vis the administration
of the institution would in pari materia apply to the
Headmaster of a school with equal force.
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24. If management of the school is not given very
wide freedom to choose the personnel for holding
such a key post, subject of course to the restrictions
regarding qualifications to be prescribed by the State,
the right to administer the school would get much
diminished.”
(Emphasis supplied)
B) Decision in TMA Pai Foundation
30. A Bench of Eleven Judges was constituted to consider questions
touching upon the rights of Minority Educational Institutions under
Articles 29 and 30 of the Constitution. The reasons why the Bench of that
strength was constituted were set out in brief in paragraph No.3 of the
leading Judgment authored by Kirpal, C.J. as under:
“3. The hearing of these cases has had a chequered
history. Writ Petition No. 350 of 1993 filed by the
Islamic Academy of Education and connected
petitions were placed before a Bench of five Judges.
As the Bench was prima facie of the opinion that
Article 30 did not clothe a minority educational
institution with the power to adopt its own method of
selection and the correctness of the decision of this
Court in St. Stephen’s College v. University of Delhi
was doubted, it was directed that the questions that
arose should be authoritatively answered by a larger
Bench. These cases were then placed before a Bench
of seven Judges. The questions framed were recast
and on 6-2-1997, the Court directed that the matter be
placed before a Bench of at least eleven Judges, as it
was felt that in view of the Forty-second Amendment
to the Constitution, whereby “education” had been
included in Entry 25 of List III of Seventh Schedule,
the question of who would be regarded as a
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“minority” was required to be considered because the
earlier case-law related to the pre-amendment era,
when education was only in the State List. When the
cases came up for hearing before an eleven-Judge
Bench, during the course of hearing on 19-3-1997, the
following order was passed:
“Since a doubt has arisen during the course of
our arguments as to whether this Bench would
feel itself bound by the ratio propounded in —
Kerala Education Bill, 1957, In Re and
Ahmedabad St. Xavier’s College Society v.
State of Gujarat it is clarified that this sized
Bench would not feel itself inhibited by the
views expressed in those cases since the
present endeavour is to discern the true scope
and interpretation of Article 30(1) of the
Constitution, which being the dominant
question would require examination in its
pristine purity. The factum is recorded.”
 31. The Bench framed 11 questions. For the present discussion we are
principally concerned with discussion relevant to question Nos.4 and 5.
Under heading- “3. In case private institutions can be governmental
regulations and if so, to what extent?”, the discussion was under various
sub-headings. The first sub-heading was “private unaided non-minority
educational institutions”. Under this sub-heading para 50 of the leading
Judgment enumerated what “the right to establish and administer”
comprises of, as under:

“50. The right to establish and administer broadly
comprises the following rights:
(a) to admit students;
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(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching);
and
(e) to take action if there is dereliction of duty on
the part of any employees.”
The other sub-headings were “private unaided professional
colleges”, “private aided professional institutions (non-minority)” and
“other aided institutions”. Since the discussion under these sub-headings
as well as the next heading does not strictly deal with the matter in the
context of minority educational institutions, we may turn to the next
heading “5. To what extent can the rights of aided private minority
institutions to administer be regulated?”
31.1. After discussing about the extent of right under Article 30 of the
Constitution, the leading Judgment considered all the relevant cases on the
point. The following paragraphs are noteworthy:
“90. In the exercise of this right to conserve the
language, script or culture, that section of the society
can set up educational institutions. The right to
establish and maintain educational institutions of its
choice is a necessary concomitant to the right
conferred by Article 30. The right under Article 30 is
not absolute. Article 29(2) provides that, where any
educational institution is maintained by the State or
receives aid out of State funds, no citizen shall be
denied admission on the grounds only of religion,
race, caste, language or any of them. The use of the
expression “any educational institution” in Article
29(2) would (sic not) refer to any educational
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institution established by anyone, but which is
maintained by the State or receives aid out of State
funds. In other words, on a plain reading, Statemaintained or aided educational institutions, whether
established by the Government or the majority or a
minority community cannot deny admission to a
citizen on the grounds only of religion, race, caste or
language.
93. Can Article 30(1) be so read as to mean that it
contains an absolute right of the minorities, whether
based on religion or language, to establish and
administer educational institutions in any manner they
desire, and without being obliged to comply with the
provisions of any law? Does Article 30(1) give the
religious or linguistic minorities a right to establish an
educational institution that propagates religious or
racial bigotry or ill will amongst the people? Can the
right under Article 30(1) be so exercised that it is
opposed to public morality or health? In the exercise
of its right, would the minority while establishing
educational institutions not be bound by town
planning rules and regulations? Can they construct
and maintain buildings in any manner they desire
without complying with the provisions of the building
bye-laws or health regulations?
… … …
105. In Rev. Sidhajbhai Sabhai v. State of Bombay
this Court had to consider the validity of an order
issued by the Government of Bombay whereby from
the academic year 1955-56, 80% of the seats in the
training colleges for teachers in non-government
training colleges were to be reserved for the teachers
nominated by the Government. The petitioners, who
belonged to the minority community, were, inter alia,
running a training college for teachers, as also
primary schools. The said primary schools and college
were conducted for the benefit of the religious
denomination of the United Church of Northern India
and Indian Christians generally, though admission
was not denied to students belonging to other
communities. The petitioners challenged the
government order requiring 80% of the seats to be
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filled by nominees of the Government, inter alia, on
the ground that the petitioners were members of a
religious denomination and that they constituted a
religious minority, and that the educational
institutions had been established primarily for the
benefit of the Christian community. It was the case of
the petitioners that the decision of the Government
violated their fundamental rights guaranteed by
Articles 30(1), 26(a), (b), (c) and (d), and 19(1)(f) and
(g). While interpreting Article 30, it was observed by
this Court at SCR pp. 849-50 as under:
“All minorities, linguistic or religious have
by Article 30(1) an absolute right to establish
and administer educational institutions of
their choice; and any law or executive
direction which seeks to infringe the
substance of that right under Article 30(1)
would to that extent be void. This, however,
is not to say that it is not open to the State to
impose regulations upon the exercise of this
right. The fundamental freedom is to
establish and to administer educational
institutions: it is a right to establish and
administer what are in truth educational
institutions, institutions which cater to the
educational needs of the citizens, or sections
thereof. Regulation made in the true interests
of efficiency of instruction, discipline, health,
sanitation, morality, public order and the like
may undoubtedly be imposed. Such
regulations are not restrictions on the
substance of the right which is guaranteed:
they secure the proper functioning of the
institution, in matters educational.”
106. While coming to the conclusion that the right of
the private training colleges to admit students of their
choice was severely restricted, this Court referred to
the opinion in Kerala Education Bill, 1957 case but
distinguished it by observing that the Court did not, in
that case, lay down any test of reasonableness of the
regulation. No general principle on which the
reasonableness of a regulation may be tested was
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sought to be laid down in Kerala Education Bill,
1957 case and, therefore, it was held in Sidhajbhai
Sabhai case that the opinion in that case was not an
authority for the proposition that all regulative
measures, which were not destructive or annihilative
of the character of the institution established by the
minority, provided the regulations were in the national
or public interest, were valid. In this connection it was
further held at SCR pp. 856-57, as follows:
“The right established by Article 30(1) is a
fundamental right declared in terms absolute.
Unlike the fundamental freedoms guaranteed
by Article 19, it is not subject to reasonable
restrictions. It is intended to be a real right for
the protection of the minorities in the matter of
setting up of educational institutions of their
own choice. The right is intended to be
effective and is not to be whittled down by socalled regulative measures conceived in the
interest not of the minority educational
institution, but of the public or the nation as a
whole. If every order which while maintaining
the formal character of a minority institution
destroys the power of administration is held
justifiable because it is in the public or national
interest, though not in its interest as an
educational institution, the right guaranteed by
Article 30(1) will be but a ‘teasing illusion’, a
promise of unreality. Regulations which may
lawfully be imposed either by legislative or
executive action as a condition of receiving
grant or of recognition must be directed to
making the institution while retaining its
character as a minority institution effective as
an educational institution. Such regulation
must satisfy a dual test — the test of
reasonableness, and the test that it is regulative
of the educational character of the institution
and is conducive to making the institution an
effective vehicle of education for the minority
community or other persons who resort to it.”

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107. The aforesaid decision does indicate that the
right under Article 30(1) is not so absolute as to
prevent the Government from making any regulation
whatsoever. As already noted hereinabove, in
Sidhajbhai Sabhai case it was laid down that
regulations made in the true interests of efficiency of
instruction, discipline, health, sanitation, morality and
public order could be imposed. If this is so, it is
difficult to appreciate how the Government can be
prevented from framing regulations that are in the
national interest, as it seems to be indicated in the
passage quoted hereinabove. Any regulation framed in
the national interest must necessarily apply to all
educational institutions, whether run by the majority
or the minority. Such a limitation must necessarily be
read into Article 30. The right under Article 30(1)
cannot be such as to override the national interest or
to prevent the Government from framing regulations
in that behalf. It is, of course, true that government
regulations cannot destroy the minority character of
the institution or make the right to establish and
administer a mere illusion; but the right under Article
30 is not so absolute as to be above the law. It will
further be seen that in Sidhajbhai Sabhai case no
reference was made to Article 29(2) of the
Constitution. This decision, therefore, cannot be an
authority for the proposition canvassed before us.”
(Emphasis supplied)
31.2. The leading Judgment thereafter considered the decision of this
Court in Ahmedabad St. Xavier’s College5
, and while quoting certain
passages therefrom, it was observed:
“119. In a concurrent judgment, while noting (at SCC
p. 770, para 73) that “clause (2) of Article 29 forbids
the denial of admission to citizens into any
educational institution maintained by the State or
receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them”,
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Khanna, J. then examined Article 30, and observed at
SCR p. 222, as follows: (SCC p. 770, para 74)
“74. Clause (1) of Article 30 gives right to all
minorities, whether based on religion or
language, to establish and administer
educational institutions of their choice.
Analysing that clause it would follow that the
right which has been conferred by the clause
is on two types of minorities. Those
minorities may be based either on religion or
on language. The right conferred upon the
said minorities is to establish and administer
educational institutions of their choice. The
word ‘establish’ indicates the right to bring
into existence, while the right to administer
an institution means the right to effectively
manage and conduct the affairs of the
institution. Administration connotes
management of the affairs of the institution.
The management must be free of control so
that the founders or their nominees can
mould the institution as they think fit and in
accordance with their ideas of how the
interest of the community in general and the
institution in particular will be best served.
The words ‘of their choice’ qualify the
educational institutions and show that the
educational institutions established and
administered by the minorities need not be of
some particular class; the minorities have the
right and freedom to establish and administer
such educational institutions as they choose.
Clause (2) of Article 30 prevents the State
from making discrimination in the matter of
grant of aid to any educational institution on
the ground that the institution is under the
management of a minority, whether based on
religion or language.”
120. Explaining the rationale behind Article 30, it was
observed at SCR p. 224, as follows: (SCC p. 772, para
77)
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“77. The idea of giving some special rights to
the minorities is not to have a kind of a
privileged or pampered section of the
population but to give to the minorities a sense
of security and a feeling of confidence. The
great leaders of India since time immemorial
had preached the doctrine of tolerance and
catholicity of outlook. Those noble ideas were
enshrined in the Constitution. Special rights
for minorities were designed not to create
inequality. Their real effect was to bring about
equality by ensuring the preservation of the
minority institutions and by guaranteeing to
the minorities autonomy in the matter of the
administration of those institutions. The
differential treatment for the minorities by
giving them special rights is intended to bring
about an equilibrium, so that the ideal of
equality may not be reduced to a mere abstract
idea but should become a living reality and
result in true, genuine equality, an equality not
merely in theory but also in fact.”
121. While advocating that provisions of the
Constitution should be construed according to the
liberal, generous and sympathetic approach, and after
considering the principles which could be discerned
by him from the earlier decisions of this Court,
Khanna, J., observed at SCR p. 234, as follows: (SCC
p. 781, para 89)
“The minorities are as much children of the
soil as the majority and the approach has been
to ensure that nothing should be done as might
deprive the minorities of a sense of belonging,
of a feeling of security, of a consciousness of
equality and of the awareness that the
conservation of their religion, culture,
language and script as also the protection of
their educational institutions is a fundamental
right enshrined in the Constitution. The same
generous, liberal and sympathetic approach
should weigh with the courts in construing
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Articles 29 and 30 as marked the deliberations
of the Constitution-makers in drafting those
articles and making them part of the
fundamental rights. The safeguarding of the
interest of the minorities amongst sections of
population is as important as the protection of
the interest amongst individuals of persons
who are below the age of majority or are
otherwise suffering from some kind of
infirmity. The Constitution and the laws made
by civilized nations, therefore, generally
contain provisions for the protection of those
interests. It can, indeed, be said to be an index
of the level of civilization and catholicity of a
nation as to how far their minorities feel secure
and are not subject to any discrimination or
suppression.”
122. The learned Judge then observed that the right of
the minorities to administer educational institutions
did not prevent the making of reasonable regulations
in respect of these institutions. Recognizing that the
right to administer educational institutions could not
include the right to maladminister, it was held that
regulations could be lawfully imposed, for the
receiving of grants and recognition, while permitting
the institution to retain its character as a minority
institution. The regulation “must satisfy a dual test —
the test of reasonableness, and the test that it is
regulative of the educational character of the
institution and is conducive to making the institution
an effective vehicle of education for the minority
community or other persons who resort to it”. (SCC p.
783, para 92) It was permissible for the authorities to
prescribe regulations, which must be complied with,
before a minority institution could seek or retain
affiliation and recognition. But it was also stated that
the regulations made by the authority should not
impinge upon the minority character of the institution.
Therefore, a balance has to be kept between the two
objectives — that of ensuring the standard of
excellence of the institution, and that of preserving the
right of the minorities to establish and administer their
educational institutions. Regulations that embraced
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and reconciled the two objectives could be considered
to be reasonable. This, in our view, is the correct
approach to the problem.
123. After referring to the earlier cases in relation to
the appointment of teachers, it was noted by Khanna,
J., that the conclusion which followed was that a law
which interfered with a minority’s choice of qualified
teachers, or its disciplinary control over teachers and
other members of the staff of the institution, was void,
as it was violative of Article 30(1). While it was
permissible for the State and its educational
authorities to prescribe the qualifications of teachers,
it was held that once the teachers possessing the
requisite qualifications were selected by the
minorities for their educational institutions, the State
would have no right to veto the selection of those
teachers. The selection and appointment of teachers
for an educational institution was regarded as one of
the essential ingredients under Article 30(1). The
Court’s attention was drawn to the fact that in Kerala
Education Bill, 1957 case this Court had opined that
clauses 11 and 12 made it obligatory for all aided
schools to select teachers from a panel selected from
each district by the Public Service Commission and
that no teacher of an aided school could be dismissed,
removed or reduced in rank without the previous
sanction of the authorized officer. At SCC p. 792,
Khanna, J., observed that in cases subsequent to the
opinion in Kerala Education Bill, 1957 case9 this
Court had held similar provisions as clause 11 and
clause 12 to be violative of Article 30(1) (sic in the
case) of the minority institutions. He then observed as
follows: (SCC p. 792, para 109)
“The opinion expressed by this Court in Re
Kerala Education Bill, 1957 was of an
advisory character and though great weight
should be attached to it because of its
persuasive value, the said opinion cannot
override the opinion subsequently expressed
by this Court in contested cases. It is the law
declared by this Court in the subsequent
contested cases which would have a binding
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effect. The words ‘as at present advised’ as
well as the preceding sentence indicate that the
view expressed by this Court in Re Kerala
Education Bill, 1957 in this respect was
hesitant and tentative and not a final view in
the matter.”
(Emphasis supplied)
31.3. After considering all the decisions, the matter was summed up as
under:
“135. We agree with the contention of the learned
Solicitor-General that the Constitution in Part III does
not contain or give any absolute right. All rights
conferred in Part III of the Constitution are subject to
at least other provisions of the said Part. It is difficult
to comprehend that the framers of the Constitution
would have given such an absolute right to the
religious or linguistic minorities, which would enable
them to establish and administer educational
institutions in a manner so as to be in conflict with the
other Parts of the Constitution. We find it difficult to
accept that in the establishment and administration of
educational institutions by the religious and linguistic
minorities, no law of the land, even the Constitution,
is to apply to them.
137. It follows from the aforesaid decisions that even
though the words of Article 30(1) are unqualified, this
Court has held that at least certain other laws of the
land pertaining to health, morality and standards of
education apply. The right under Article 30(1) has,
therefore, not been held to be absolute or above other
provisions of the law, and we reiterate the same. By
the same analogy, there is no reason why regulations
or conditions concerning, generally, the welfare of
students and teachers should not be made applicable
in order to provide a proper academic atmosphere, as
such provisions do not in any way interfere with the
right of administration or management under Article
30(1).
138. As we look at it, Article 30(1) is a sort of
guarantee or assurance to the linguistic and religious
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minority institutions of their right to establish and
administer educational institutions of their choice.
Secularism and equality being two of the basic
features of the Constitution, Article 30(1) ensures
protection to the linguistic and religious minorities,
thereby preserving the secularism of the country.
Furthermore, the principles of equality must
necessarily apply to the enjoyment of such rights. No
law can be framed that will discriminate against such
minorities with regard to the establishment and
administration of educational institutions vis-à-vis
other educational institutions. Any law or rule or
regulation that would put the educational institutions
run by the minorities at a disadvantage when
compared to the institutions run by the others will
have to be struck down. At the same time, there also
cannot be any reverse discrimination. It was observed
in St. Xavier’s College case5 at SCR p. 192 that :
(SCC p. 743, para 9)
“The whole object of conferring the right on
minorities under Article 30 is to ensure that
there will be equality between the majority and
the minority. If the minorities do not have such
special protection they will be denied
equality.”
In other words, the essence of Article 30(1) is to
ensure equal treatment between the majority and the
minority institutions. No one type or category of
institution should be disfavoured or, for that matter,
receive more favourable treatment than another. Laws
of the land, including rules and regulations, must
apply equally to the majority institutions as well as to
the minority institutions. The minority institutions
must be allowed to do what the non-minority
institutions are permitted to do.
139. Like any other private unaided institutions,
similar unaided educational institutions administered
by linguistic or religious minorities are assured
maximum autonomy in relation thereto; e.g. method
of recruitment of teachers, charging of fees and
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admission of students. They will have to comply with
the conditions of recognition, which cannot be such as
to whittle down the right under Article 30.”
(Emphasis supplied)
31.4. The matter was then considered in the context where aid was
being received by the concerned minority institution and to what extent its
autonomy in administration, could be curtailed or regulated. It was
observed:
“144. It cannot be argued that no conditions can be
imposed while giving aid to a minority institution.
Whether it is an institution run by the majority or the
minority, all conditions that have relevance to the
proper utilization of the grant-in-aid by an educational
institution can be imposed. All that Article 30(2)
states is that on the ground that an institution is under
the management of a minority, whether based on
religion or language, grant of aid to that educational
institution cannot be discriminated against, if other
educational institutions are entitled to receive aid. The
conditions for grant or non-grant of aid to educational
institutions have to be uniformly applied, whether it is
a majority-run institution or a minority-run institution.
As in the case of a majority-run institution, the
moment a minority institution obtains a grant of aid,
Article 28 of the Constitution comes into play. When
an educational institution is maintained out of State
funds, no religious instruction can be provided
therein. Article 28(1) does not state that it applies only
to educational institutions that are not established or
maintained by religious or linguistic minorities.
Furthermore, upon the receipt of aid, the provisions of
Article 28(3) would apply to all educational
institutions whether run by the minorities or the nonminorities. Article 28(3) is the right of a person
studying in a State-recognized institution or in an
educational institution receiving aid from State funds,
not to take part in any religious instruction, if
imparted by such institution, without his/her consent
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(or his/her guardian’s consent if such a person is a
minor). Just as Articles 28(1) and (3) become
applicable the moment any educational institution
takes aid, likewise, Article 29(2) would also be
attracted and become applicable to an educational
institution maintained by the State or receiving aid out
of State funds. It was strenuously contended that the
right to give admission is one of the essential
ingredients of the right to administer conferred on the
religious or linguistic minority, and that this right
should not be curtailed in any manner. It is difficult to
accept this contention. If Articles 28(1) and (3) apply
to a minority institution that receives aid out of State
funds, there is nothing in the language of Article 30
that would make the provisions of Article 29(2)
inapplicable. Like Article 28(1) and Article 28(3),
Article 29(2) refers to “any educational institution
maintained by the State or receiving aid out of State
funds”. A minority institution would fall within the
ambit of Article 29(2) in the same manner in which
Article 28(1) and Article 28(3) would be applicable to
an aided minority institution. It is true that one of the
rights to administer an educational institution is to
grant admission to the students. As long as an
educational institution, whether belonging to the
minority or the majority community, does not receive
aid, it would, in our opinion, be its right and
discretion to grant admission to such students as it
chooses or selects subject to what has been clarified
before. Out of the various rights that the minority
institution has in the administration of the institution,
Article 29(2) curtails the right to grant admission to a
certain extent. By virtue of Article 29(2), no citizen
can be denied admission by an aided minority
institution on the grounds only of religion, race, caste,
language or any of them. It is no doubt true that
Article 29(2) does curtail one of the powers of the
minority institution, but on receiving aid, some of the
rights that an unaided minority institution has, are also
curtailed by Articles 28(1) and 28(3). A minority
educational institution has a right to impart religious
instruction — this right is taken away by Article
28(1), if that minority institution is maintained wholly
out of State funds. Similarly on receiving aid out of
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State funds or on being recognized by the State, the
absolute right of a minority institution requiring a
student to attend religious instruction is curtailed by
Article 28(3). If the curtailment of the right to
administer a minority institution on receiving aid or
being wholly maintained out of State funds as
provided by Article 28 is valid, there is no reason why
Article 29(2) should not be held to be applicable.
There is nothing in the language of Articles 28(1) and
(3), Article 29(2) and Article 30 to suggest that, on
receiving aid, Articles 28(1) and (3) will apply, but
Article 29(2) will not. Therefore, the contention that
the institutions covered by Article 30 are outside the
injunction of Article 29(2) cannot be accepted.
… … …
151. The right of the aided minority institution to
preferably admit students of its community, when
Article 29(2) was applicable, has been clarified by
this Court over a decade ago in St. Stephen’s College
case. While upholding the procedure for admitting
students, this Court also held that aided minority
educational institutions were entitled to preferably
admit their community candidates so as to maintain
the minority character of the institution, and that the
State may regulate the intake in this category with due
regard to the area that the institution was intended to
serve, but that this intake should not be more than
50% in any case. Thus, St. Stephen’s endeavoured to
strike a balance between the two articles. Though we
accept the ratio of St. Stephen’s which has held the
field for over a decade, we have compelling
reservations in accepting the rigid percentage
stipulated therein. As Article 29 and Article 30 apply
not only to institutions of higher education but also to
schools, a ceiling of 50% would not be proper. It will
be more appropriate that, depending upon the level of
the institution, whether it be a primary or secondary
or high school or a college, professional or otherwise,
and on the population and educational needs of the
area in which the institution is to be located, the State
properly balances the interests of all by providing for
such a percentage of students of the minority
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community to be admitted, so as to adequately serve
the interest of the community for which the institution
was established.
152. At the same time, the admissions to aided
institutions, whether awarded to minority or nonminority students, cannot be at the absolute sweet will
and pleasure of the management of minority
educational institutions. As the regulations to promote
academic excellence and standards do not encroach
upon the guaranteed rights under Article 30, the aided
minority educational institutions can be required to
observe inter se merit amongst the eligible minority
applicants and passage of common entrance test by
the candidates, where there is one, with regard to
admissions in professional and non-professional
colleges. If there is no such test, a rational method of
assessing comparative merit has to be evolved. As
regards the non-minority segment, admission may be
on the basis of the common entrance test and
counselling by a State agency. In the courses for
which such a test and counselling are not in vogue,
admission can be on the basis of relevant criteria for
the determination of merit. It would be open to the
State authorities to insist on allocating a certain
percentage of seats to those belonging to weaker
sections of society, from amongst the non-minority
seats.”
(Emphasis supplied)
31.5. Finally, as regards Question No.5(c), the leading judgment gave its
answer as under:-
“Q. 5. (c) Whether the statutory provisions which
regulate the facets of administration like control over
educational agencies, control over governing bodies,
conditions of affiliation including
recognition/withdrawal thereof, and appointment of
staff, employees, teachers and principals including
their service conditions and regulation of fees, etc.
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would interfere with the right of administration of
minorities?
A. So far as the statutory provisions regulating the
facets of administration are concerned, in case of an
unaided minority educational institution, the
regulatory measure of control should be minimal and
the conditions of recognition as well as the conditions
of affiliation to a university or board have to be
complied with, but in the matter of day-to-day
management, like the appointment of staff, teaching
and non-teaching, and administrative control over
them, the management should have the freedom and
there should not be any external controlling agency.
However, a rational procedure for the selection of
teaching staff and for taking disciplinary action has to
be evolved by the management itself.
For redressing the grievances of employees of aided
and unaided institutions who are subjected to
punishment or termination from service, a mechanism
will have to be evolved, and in our opinion,
appropriate tribunals could be constituted, and till
then, such tribunals could be presided over by a
judicial officer of the rank of District Judge.
The State or other controlling authorities, however,
can always prescribe the minimum qualification,
experience and other conditions bearing on the merit
of an individual for being appointed as a teacher or a
principal of any educational institution.
“Regulations can be framed governing service
conditions for teaching and other staff for whom aid is
provided by the State, without interfering with the
overall administrative control of the management over
the staff.
Fees to be charged by unaided institutions cannot be
regulated but no institution should charge capitation
fee.”
C) Decisions after TMA Pai Foundation
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32. In Brahmo Samaj Education Society vs. State of West Bengal24
,
a Bench of two Judges dealt with the issue that arose as under:-
“5. The main question for consideration is, whether
the appointment of teachers through the selection of
the College Service Commission is permissible or not,
in other words, to decipher the role of the State in the
matter of appointment of teachers. To establish and
administer an educational institution is held to be a
right coming under Article 19(1)(g) of the
Constitution as enunciated in T.M.A. Pai Foundation
v. State of Karnataka8
. According to Article 19(6) of
the Constitution, the right to establish and maintain an
educational institution is subject to the reasonable
restrictions imposed by the State in the interest of
general public. At the same time, subject to public
order, morality and health, every religious
denomination or any section thereof can establish and
maintain educational institutions under Article 26(a)
of the Constitution. Reading Article 19(1)(g) and
Article 26(a) of the Constitution together, the
petitioners have a right to establish and maintain
educational institutions and hence we do not think it is
necessary to decide the issue of
minority/denominational status of Brahmo Samaj to
decide the issue in hand. In our view, this issue does
not arise in the context of the present case.
6. The question now before us is to decide whether
the appointment of teachers in an aided institution by
the College Service Commission by restricting the
petitioners’ right to appointment is a reasonable
restriction in the interest of general public or not. The
petitioners have a right to establish and administer
educational institution. Merely because the petitioners
are receiving aid, their autonomy of administration
cannot be totally restricted and institutions cannot be
treated as a government-owned one. Of course the
State can impose such conditions as are necessary for
the proper maintenance of standards of education and
24 (2004) 6 SCC 224
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to check maladministration. It is stated in T.M.A. Pai8
that:
“71. While giving aid to professional
institutions, it would be permissible for the
authority giving aid to prescribe by rules or
regulations, the conditions on the basis of
which admission will be granted to different
aided colleges by virtue of merit, coupled with
the reservation policy of the State. The merit
may be determined either through a common
entrance test conducted by the university or the
Government followed by counselling, or on
the basis of an entrance test conducted by
individual institutions — the method to be
followed is for the university or the
Government to decide. The authority may also
devise other means to ensure that admission is
granted to an aided professional institution on
the basis of merit. In the case of such
institutions, it will be permissible for the
Government or the university to provide that
consideration should be shown to the weaker
sections of the society. (SCC at p. 550, para
71)
72. Once aid is granted to a private
professional educational institution, the
Government or the State agency, as a condition
of the grant of aid, can put fetters on the
freedom in the matter of administration and
management of the institution. The State,
which gives aid to an educational institution,
can impose such conditions as are necessary
for the proper maintenance of the high
standards of education as the financial burden
is shared by the State. The State would also be
under an obligation to protect the interest of
the teaching and non-teaching staff. In many
States, there are various statutory provisions to
regulate the functioning of such educational
institutions where the States give, as a grant or
aid, a substantial proportion of the revenue
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expenditure including salary, pay and
allowances of teaching and non-teaching staff.
It would be its responsibility to ensure that the
teachers working in those institutions are
governed by proper service conditions. The
State, in the case of such aided institutions, has
ample power to regulate the method of
selection and appointment of teachers after
prescribing requisite qualifications for the
same. Ever since in Kerala Education Bill,
1957, Re9 this Court has upheld, in the case of
aided institutions, those regulations that served
the interests of students and teachers. Checks
on the administration may be necessary in
order to ensure that the administration is
efficient and sound and will serve the
academic needs of the institutions. In other
words, rules and regulations that promote good
administration and prevent maladministration
can be formulated so as to promote the
efficiency of teachers, discipline and fairness
in administration and to preserve harmony
among affiliated institutions. At the same time
it has to be ensured that even an aided
institution does not become a governmentowned and controlled institution. Normally,
the aid that is granted is relatable to the pay
and allowances of the teaching staff. In
addition, the management of the private aided
institutions has to incur revenue and capital
expenses. Such aided institutions cannot obtain
that extent of autonomy in relation to
management and administration as would be
available to a private unaided institution, but at
the same time, it cannot also be treated as an
educational institution departmentally run by
Government or as a wholly owned and
controlled government institution and interfere
with constitution of the governing bodies or
thrusting the staff without reference to
management.
73. There are a large number of educational
institutions, like schools and non-professional
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colleges, which cannot operate without the
support of aid from the State. Although these
institutions may have been established by
philanthropists or other public-spirited
persons, it becomes necessary, in order to
provide inexpensive education to the students,
to seek aid from the State. In such cases, as
those of the professional aided institutions
referred to hereinabove, the Government
would be entitled to make regulations relating
to the terms and conditions of employment of
the teaching and non-teaching staff whenever
the aid for the posts is given by the State as
well as admission procedures. Such rules and
regulations can also provide for the reasons
and the manner in which a teacher or any other
member of the staff can be removed. In other
words, the autonomy of a private aided
institution would be less than that of an
unaided institution.
… … …
10. When a larger Bench consisting of eleven Judges
of this Court in T.M.A. Pai has declared what the law
on the matter is, we do not want to dilute the effect of
the same by analysing various statements made
therein or indulge in any dissection of the principles
underlying it. We would rather state that the State
Government shall take note of the declarations of law
made by this Court in this regard and make suitable
amendments to their laws, rules and regulations to
bring them in conformity with the principles set out
therein.”
33. In P.A. Inamdar and others v. State of Maharashtra and others25
a Bench of Seven Judges of this Court culled out the issues which arose for
its consideration as under:
25 (2005) 6 SCC 537
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“26. These matters have been directed to be placed for
hearing before a Bench of seven Judges under orders
of the Chief Justice of India pursuant to the order
dated 15-7-2004 in P.A. Inamdar v. State of
Maharashtra26 and order dated 29-7-2004 in
Pushpagiri Medical Society v. State of Kerala27. The
aggrieved persons before us are again classifiable in
one class, that is, unaided minority and non-minority
institutions imparting professional education. The
issues arising for decision before us are only three:
(i) the fixation of “quota” of admissions/students in
respect of unaided professional institutions;
(ii) the holding of examinations for admissions to
such colleges, that is, who will hold the entrance tests;
and
(iii) the fee structure.
The questions spelled out by orders of reference
27. In the light of the two orders of reference, referred
to hereinabove, we propose to confine our discussion
to the questions set out hereunder which, according to
us, arise for decision:
(1) To what extent can the State regulate admissions
made by unaided (minority or non-minority)
educational institutions? Can the State enforce its
policy of reservation and/or appropriate to itself any
quota in admissions to such institutions?
(2) Whether unaided (minority and non-minority)
educational institutions are free to devise their own
admission procedure or whether the direction made in
Islamic Academy28 for compulsorily holding an
entrance test by the State or association of institutions
and to choose therefrom the students entitled to
26 (2004) 8 SCC 139
27 (2004) 8 SCC 135
28 (2003) 6 SCC 697
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admission in such institutions, can be sustained in
light of the law laid down in Pai Foundation?
(3) Whether Islamic Academy could have issued
guidelines in the matter of regulating the fee payable
by the students to the educational institutions?
(4) Can the admission procedure and fee structure be
regulated or taken over by the Committees ordered to
be constituted by Islamic Academy?”
33.1. While dealing with real purpose of Article 30 of the Constitution, it was
stated:-
“70. The real purpose of Article 30 is to prevent
discrimination against members of the minority
community and to place them on an equal footing
with non-minority. Reverse discrimination was not the
intention of Article 30. If running of educational
institutions cannot be said to be at a higher plane than
the right to carry on any other business, reasonable
restrictions similar to those placed on the right to
carry on business can be placed on educational
institutions conducting professional courses. For the
purpose of these restrictions both minorities and nonminorities can be treated at par and there would not be
any violation of Article 30(1), which guarantees only
protection against oppression and discrimination of
the minority from the majority. Activities of education
being essentially charitable in nature, the educational
institutions both of a non-minority and minority
character can be regulated and controlled so that they
do not indulge in selling seats of learning to make
money. They can be allowed to generate such funds as
would be reasonably required to run the institute and
for its further growth.”
 (Emphasis supplied)
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33.2 The discussion shows that the matter was considered in the context
of the rights of unaided institutions and not with regard to “minority
educational institutions receiving State aid” as is evident from para No.123
of the decision. Para No.103 of the decision shows that minority
educational institutions were classified in three categories and para No.104
onwards points difference between professional and non-professional
educational institutions. Paragraph Nos.104 to 107 were as under:
“Difference between professional and nonprofessional educational institutions
104. Article 30(1) speaks of “educational institutions”
generally and so does Article 29(2). These articles do
not draw any distinction between an educational
institution dispensing theological education or
professional or non-professional education. However,
the terrain of thought as has developed through
successive judicial pronouncements culminating in
Pai Foundation is that looking at the concept of
education, in the backdrop of the constitutional
provisions, professional educational institutions
constitute a class by themselves as distinguished from
educational institutions imparting non-professional
education. It is not necessary for us to go deep into
this aspect of the issue posed before us inasmuch as
Pai Foundation has clarified that merit and excellence
assume special significance in the context of
professional studies. Though merit and excellence are
not anathema to non-professional education, yet at
that level and due to the nature of education which is
more general, the need for merit and excellence
therein is not of the degree as is called for in the
context of professional education.
105. Dealing with unaided minority educational
institutions, Pai Foundation8
 holds that Article 30
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does not come in the way of the State stepping in for
the purpose of securing transparency and recognition
of merit in the matter of admissions. Regulatory
measures for ensuring educational standards and
maintaining excellence thereof are no anathema to the
protection conferred by Article 30(1). However, a
distinction is to be drawn between unaided minority
educational institution of the level of schools and
undergraduate colleges on the one side and
institutions of higher education, in particular, those
imparting professional education, on the other side. In
the former, the scope for merit-based selection is
practically nil and hence may not call for regulation.
But in the case of the latter, transparency and merit
have to be unavoidably taken care of and cannot be
compromised. There could be regulatory measures for
ensuring educational standards and maintaining
excellence thereof. (See para 161, answer to Question
4, in Pai Foundation.) The source of this distinction
between two types of educational institutions referred
to hereinabove is to be found in the principle that
right to administer does not include a right to
maladminister.

106. S.B. Sinha, J. has, in his separate opinion in
Islamic Academy described (in para 199) the situation
as a pyramid-like situation and suggested the right of
minority to be read along with the fundamental duty.
Higher the level of education, lesser are the seats and
higher weighs the consideration for merit. It will,
necessarily, call for more State intervention and lesser
say for the minority.
107 Educational institutions imparting higher
education i.e. graduate level and above and in
particular specialised education such as technical or
professional, constitute a separate class. While
embarking upon resolving issues of constitutional
significance, where the letter of the Constitution is not
clear, we have to keep in view the spirit of the
Constitution, as spelt out by its entire scheme.
Education aimed at imparting professional or
technical qualifications stands on a different footing
from other educational instruction. Apart from other
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provisions, Article 19(6) is a clear indicator and so are
clauses (h) and (j) of Article 51-A. Education up to
the undergraduate level aims at imparting knowledge
just to enrich the mind and shape the personality of a
student. Graduate-level study is a doorway to
admissions in educational institutions imparting
professional or technical or other higher education
and, therefore, at that level, the considerations akin to
those relevant for professional or technical
educational institutions step in and become relevant.
This is in the national interest and strengthening the
national wealth, education included. Education up to
the undergraduate level on the one hand and education
at the graduate and postgraduate levels and in
professional and technical institutions on the other are
to be treated on different levels inviting not identical
considerations, is a proposition not open to any more
debate after Pai Foundation. A number of legislations
occupying the field of education whose constitutional
validity has been tested and accepted suggest that
while recognition or affiliation may not be a must for
education up to undergraduate level or, even if
required, may be granted as a matter of routine,
recognition or affiliation is a must and subject to
rigorous scrutiny when it comes to educational
institutions awarding degrees, graduate or
postgraduate, postgraduate diplomas and degrees in
technical or professional disciplines. Some such
legislations are found referred in paras 81 and 82 of
S.B. Sinha, J.’s opinion in Islamic Academy.”
34. In Kanya Junior High School, Bal Vidya Mandir, Etah, U.P. v.
U.P. Basic Shiksha Parishad, Allahabd, U.P. and others29 one of the issues
that arose was whether the school established and administered by
individuals professing – Jain Religion could be said to be a Religious
Minority Educational Institution in the State of U.P. It was concluded by
29 (2006) 11 SCC 92
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this Court that since the school was recognised as a Minority Educational
Institution by the Division Bench of the High Court of Judicature at
Allahabad, it could not be denied that status and as such before terminating
the services of a teacher, prior approval of the District Basic Education
Officer was not necessary.
35. In Secretary, Malankara Syrian Catholic College v. T. Jose and
others6
the principal question that arose for consideration was whether
right to choose a Principal is part of the right of a minority institution
under Article 30(1) of the Constitution. This Court considered the relevant
decisions on the point and also quoted para No.16 of the decision of this
Court in Frank Anthony Public School case17. The general principles
relevant to establishment and administration of educational institutions by
minorities were summed up as under:-
“19. The general principles relating to establishment
and administration of educational institution by
minorities may be summarised thus:
(i) The right of minorities to establish and administer
educational institutions of their choice comprises the
following rights:
(a) to choose its governing body in whom the
founders of the institution have faith and
confidence to conduct and manage the affairs of
the institution;
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(b) to appoint teaching staff (teachers/lecturers
and Headmasters/Principals) as also non-teaching
staff, and to take action if there is dereliction of
duty on the part of any of its employees;
(c) to admit eligible students of their choice and
to set up a reasonable fee structure;
(d) to use its properties and assets for the benefit
of the institution.
(ii) The right conferred on minorities under Article 30
is only to ensure equality with the majority and not
intended to place the minorities in a more
advantageous position vis-à-vis the majority. There is
no reverse discrimination in favour of minorities. The
general laws of the land relating to national interest,
national security, social welfare, public order,
morality, health, sanitation, taxation, etc. applicable to
all, will equally apply to minority institutions also.
(iii) The right to establish and administer educational
institutions is not absolute. Nor does it include the
right to maladminister. There can be regulatory
measures for ensuring educational character and
standards and maintaining academic excellence. There
can be checks on administration as are necessary to
ensure that the administration is efficient and sound,
so as to serve the academic needs of the institution.
Regulations made by the State concerning generally
the welfare of students and teachers, regulations
laying down eligibility criteria and qualifications for
appointment, as also conditions of service of
employees (both teaching and non-teaching),
regulations to prevent exploitation or oppression of
employees, and regulations prescribing syllabus and
curriculum of study fall under this category. Such
regulations do not in any manner interfere with the
right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications
prescribed by the State being met, the unaided
minority educational institutions will have the
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freedom to appoint teachers/lecturers by adopting any
rational procedure of selection.
(v) Extension of aid by the State does not alter the
nature and character of the minority educational
institution. Conditions can be imposed by the State to
ensure proper utilisation of the aid, without however
diluting or abridging the right under Article 30(1).
… … …
21. We may also recapitulate the extent of regulation
by the State, permissible in respect of employees of
minority educational institutions receiving aid from
the State, as clarified and crystallised in T.M.A. Pai
The State can prescribe:
(i) the minimum qualifications, experience and other
criteria bearing on merit, for making appointments,
(ii) the service conditions of employees without
interfering with the overall administrative control by
the management over the staff,
(iii) a mechanism for redressal of the grievances of
the employees,
(iv) the conditions for the proper utilisation of the aid
by the educational institutions, without abridging or
diluting the right to establish and administer
educational institutions.
In other words, all laws made by the State to regulate
the administration of educational institutions and
grant of aid will apply to minority educational
institutions also. But if any such regulations interfere
with the overall administrative control by the
management over the staff, or abridges/dilutes, in any
other manner, the right to establish and administer
educational institutions, such regulations, to that
extent, will be inapplicable to minority institutions.”
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35.1 As regards freedom to choose the principal, it was observed:-
22. The Principal or Headmaster of an educational
institution is responsible for the functional efficiency
of the institution, as also the quality of education and
discipline in the institution. He is also responsible for
maintaining the philosophy and objects of the
institution.
35.2 It also relied upon the passage from the decision of this Court in N.
Ammad23
, as under:-
25. In N. Ammad the appellant contended that he
being the seniormost graduate teacher of an aided
minority school, he should be appointed as the
Headmaster and none else. He relied on Rule 44-A of
the Kerala Education Rules which provided that
appointment of Headmaster shall ordinarily be
according to seniority from the seniority list prepared
and maintained under clauses (a) and (b) of Rule 34.
This Court held: (SCC p. 680, paras 18-19)
“18. Selection and appointment of
Headmaster in a school (or Principal of a
college) are of prime importance in
administration of that educational institution.
The Headmaster is the key post in the
running of the school. He is the hub on which
all the spokes of the school are set around
whom they rotate to generate result. A school
is personified through its Headmaster and he
is the focal point on which outsiders look at
the school. A bad Headmaster can spoil the
entire institution, an efficient and honest
Headmaster can improve it by leaps and
bounds. The functional efficacy of a school
very much depends upon the efficiency and
dedication of its Headmaster. This pristine
precept remains unchanged despite many
changes taking place in the structural patterns
of education over the years.
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19. How important is the post of Headmaster
of a school has been pithily stated by a Full
Bench of the Kerala High Court in Aldo
Maria Patroni v. E.C. Kesavan30. Chief
Justice M.S. Menon has, in a style which is
inimitable, stated thus:
‘The post of the headmaster is of pivotal
importance in the life of a school.
Around him wheels the tone and temper
of the institution; on him depends the
continuity of its traditions, the
maintenance of discipline and the
efficiency of its teaching. The right to
choose the headmaster is perhaps the
most important facet of the right to
administer a school, and we must hold
that the imposition of any trammel
thereon—except to the extent of
prescribing the requisite qualifications
and experience—cannot but be
considered as a violation of the right
guaranteed by Article 30(1) of the
Constitution. To hold otherwise will be
to make the right “a teasing illusion, a
promise of unreality”.’
Thereafter, this Court concluded that the management
of minority institution is free to find out a qualified
person either from the staff of the same institution or
from outside, to fill up the vacancy; and that the
management’s right to choose a qualified person as
the Headmaster of the school is well insulated by the
protective cover of Article 30(1) of the Constitution
and it cannot be chiselled out through any legislative
act or executive rule except for fixing up the
qualifications and conditions of service for the post;
and that any such statutory or executive fiat would be
violative of the fundamental right enshrined in Article
30(1) and would therefore be void. This Court further
observed that if the management of the school is not
30 AIR 1965 Ker 75 : 1964 KLT 791 (FB)
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given the wide freedom to choose the person for
holding the key post of Principal subject, of course, to
the restriction regarding qualifications to be
prescribed by the State, the right to administer the
school would get much diminished.
35.3 It was, thereafter, concluded:-
“27. It is thus clear that the freedom to choose the
person to be appointed as Principal has always been
recognised as a vital facet of the right to administer
the educational institution. This has not been, in any
way, diluted or altered by T.M.A. Pai. Having regard
to the key role played by the Principal in the
management and administration of the educational
institution, there can be no doubt that the right to
choose the Principal is an important part of the right
of administration and even if the institution is aided,
there can be no interference with the said right. The
fact that the post of the Principal/Headmaster is also
covered by State aid will make no difference.”
36. In Sindhi Education Society and another v. Chief Secretary,
Government of NCT of Delhi and others7
 a Bench of two Judges of this
Court considered inter alia whether under Rule 64(1)(b) of the Delhi
School Education Rules, 1973, instructions could be issued to fill in the
posts of teachers in an aided Minority Educational Institution in accordance
with the policy of reservation by candidates from the categories of
Scheduled Casts and Scheduled Tribes. The ratio of the cases decided by
this Court in Re: The Kerala Education Bill, 19579
and in Ahmedabad St.
Xaviers’ College5
 was considered as under:
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“46. In the said case, the Court held that right of the
minorities to some extent was restricted in the sense
that general control still could be exercised by the
authorities concerned, but in accordance with law.
That is how Clause 11 of the Bill, which has been
very heavily relied upon by the respondents before us,
completely puts an embargo on the appointment of
teachers of their choice and the teachers could only be
appointed out of the panel selected by the Public
Service Commission. This clause was held not to be
in violation of the Constitution, but Clauses 14 and
15, which related to taking over of the management of
an aided school for the conditions stipulated therein,
were held to be unconstitutional and bad. This was in
view of the law stated under the Bill and its scheme
that weighed with the Court to record the findings
aforenoticed.
47. Still another seven-Judge Bench of this Court, in
Ahmedabad St. Xavier’s College Society5 was
primarily concerned with the scope of Articles 29 and
30 of the Constitution, relating to the rights of
minorities to impart general education and
applicability of the concept of affiliation to such
institutions. Of course, the Court held that there was
no fundamental right of a minority institution to get
affiliation from a university. When a minority
institution applies to a university to be affiliated, it
expresses its choice to participate in the system of
general education and courses of instructions
prescribed by that university, and it agrees to follow
the uniform courses of study. Therefore, measures
which will regulate the courses of study, the
qualifications and appointment of teachers, the
conditions of employment of teachers, the health,
hygiene of students and the other facilities are
germane to affiliation of minority institutions.
36.1 In the context of the decision in TMA Pai Foundation8
, it was
observed:
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“55. The respondents have placed reliance upon the
law stated by the Bench that any regulation framed in
the national interest must necessarily apply to all
educational institutions, whether run by majority or
the minority. Such a limitation must be read into
Article 30. The rule under Article 30(1) cannot be
such as to override the national interest or to prevent
the Government from framing regulations in that
behalf. It is, of course, true that government
regulations cannot destroy the minority character of
the institution or make a right to establish and
administer a mere illusion; but the right under Article
30 is not so absolute as to be above the law.
56. The appellant also seeks to derive benefit from the
view that the courts have also held that the right to
administer is not absolute and is subject to reasonable
regulations for the benefit of the institutions as the
vehicle of education consistent with the national
interest. Such general laws of the land would also be
applicable to the minority institutions as well. There is
no reason why regulations or conditions concerning
generally the welfare of the students and teachers
should not be made applicable in order to provide a
proper academic atmosphere. As such, the provisions
do not, in any way, interfere with the right of
administration or management under Article 30(1).
Any law, rule or regulation, that would put the
educational institutions run by the minorities at a
disadvantage, when compared to the institutions run
by the others, will have to be struck down. At the
same time, there may not be any reverse
discrimination.
91. In T.M.A. Pai case8 the right to establish an
institution is provided. The Court held that the right to
establish an institution is provided in Article 19(1)(g)
of the Constitution. Such right, however, is subject to
reasonable restriction, which may be brought about in
terms of clause (6) thereof. Further, that minority,
whether based on religion or language, however, has a
fundamental right to establish and administer
educational institution of its own choice under Article
30(1).
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92. The right under clause (1) of Article 30 is not
absolute but subject to reasonable restrictions which,
inter alia, may be framed having regard to the public
interest and national interest of the country.
Regulation can also be framed to prevent
maladministration as well as for laying down
standards of education, teaching, maintenance of
discipline, public order, health, morality, etc. It is also
well settled that a minority institution does not cease
to be so, the moment grant-in-aid is received by the
institution. An aided minority educational institution,
therefore, would be entitled to have the right of
admission of students belonging to the minority group
and, at the same time, would be required to admit a
reasonable extent of non-minority students, to the
extent, that the right in Article 30(1) is not
substantially impaired and further, the citizen’s right
under Article 29(2) is not infringed.”
36.2 While considering the amplitude of the Rule in question, it was
observed:
“101. To appoint a teacher is part of the regular
administration and management of the school. Of
course, what should be the qualification or eligibility
criteria for a teacher to be appointed can be defined
and, in fact, has been defined by the Government of
NCT of Delhi and within those specified parameters,
the right of a linguistic minority institution to appoint
a teacher cannot be interfered with. The paramount
feature of the above laws was to bring efficiency and
excellence in the field of school education and,
therefore, it is expected of the minority institutions to
select the best teacher to the faculty. To provide and
enforce any regulation, which will practically defeat
this purpose would have to be avoided. A linguistic
minority is entitled to conserve its language and
culture by a constitutional mandate. Thus, it must
select people who satisfy the prescribed criteria,
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qualification and eligibility and at the same time
ensure better cultural and linguistic compatibility to
the minority institution.
112. Every linguistic minority may have its own
social, economic and cultural limitations. It has a
constitutional right to conserve such culture and
language. Thus, it would have a right to choose
teachers, who possess the eligibility and
qualifications, as provided, without really being
impressed by the fact of their religion and community.
Its own limitations may not permit, for cultural,
economic or other good reasons, to induct teachers
from a particular class or community. The direction,
as contemplated under Rule 64(1)(b), could be
enforced against the general or majority category of
the government-aided schools but, it may not be
appropriate to enforce such condition against
linguistic minority schools. This may amount to
interference with their right of choice and, at the same
time, may dilute their character of linguistic minority.
It would be impermissible in law to bring such actions
under the cover of equality which in fact, would
diminish the very essence of their character or status.
Linguistic and cultural compatibility can be
legitimately claimed as one of the desirable features
of a linguistic minority in relation to selection of
eligible and qualified teachers.”
36.3 It was also observed that despite Rule 64(1)(b), a circular was
issued on 21.03.1986 exempting Minority Institutions from complying with
the requirements of said Rule; and that the subsequent insistence through
circular of September 1989 did not disclose any reason for such departure
and it was, therefore, observed:
“117. Thus, the framework of reservation policy
should be such, as to fit in within the constitutional
scheme of our democracy. As and when the
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Government changes its policy decision, it is expected
to give valid reasons and act in the larger interest of
the entire community rather than a section thereof. In
its wisdom and apparently in accordance with law the
Government had taken a policy decision and issued
the Circular dated 21-3-1986 exempting the minority
institutions from complying with the requirements of
Rule 64(1)(b) of the DSE Rules. Despite this and the
judgment of the High Court there was a change of
mind by the State that resulted in issuance of the
subsequent Circular of September 1989. From the
record before us, no reasons have been recorded in
support of the decision superseding the Circular dated
21-3-1986.”
36.4 In the aforesaid circumstances, the appeal was allowed and it was
held that Rule 64(1)(b) and the circular of 1989 would not be enforceable
against Linguistic Minority Schools in the NCT of Delhi.
37. In Chandana Das (Malakar) vs. State of West Bengal and
others31 the question that arose was set out in para 6 as under:-
6. … …whether the Institution’s right to select and
appoint teachers is in any way affected by the
provisions of the Rules of Management of Recognised
Non-Government Institutions (Aided and Unaided),
1969 framed under the provisions of the West Bengal
Board of Secondary Education Act, 1963?”
In terms of Rule 28 teachers on permanent or temporary basis,
against permanent or temporary vacancies, could be appointed only on the
recommendation of the West Bengal Regional School Service
31 (2015) 12 SCC 140
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Commission32. However, according to Rule 33, on the application by any
institution to which the provisions of Articles 26 and 30 of the Constitution
apply, rules could be framed by the State Government. According to the
State, the concerned institution had never claimed minority status and was
never recognised as minority institution. Reliance was also placed on Rule
8(3) of the Rules for Management of Recognised Non-Government
Institutions (Aided and Unaided), 1969 whereunder permission for special
constitution was granted to the institution and, therefore, it was submitted
that having accepted the special constitution, it could not turn around and
contend that it was a minority institution as per special rules framed in
terms of Rule 33.
37.1 There was disagreement between the Judges constituting the Bench.
According to Thakur, J, as the learned Chief Justice then was, since the
institution was set up by Punjabi speaking Sikh community, a linguistic
minority in the State, the mechanism provided for making appointments
under Rule 28 had no application to minority educational institutions for
whom there could be special dispensation under Rule 33. During the
course of his Judgment, Thakur, J. observed:-
“21. It is unnecessary to multiply decisions on the
subject for the legal position is well settled. Linguistic
32 Constituted in forms of 1997 Act – as dealt with in para 6 hereinabove.
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institution and religious are entitled to establish and
administer their institutions. Such right of
administration includes the right of appointing
teachers of its choice but does not denude the State of
its power to frame regulations that may prescribe the
conditions of eligibility for appointment of such
teachers. The regulations can also prescribe measures
to ensure that the institution is run efficiently for the
right to administer does not include the right to
maladministration. While grant-in-aid is not included
in the guarantee contained in the Constitution to
linguistic and religious minorities for establishing and
running their educational institutions, such grant
cannot be denied to such institutions only because the
institutions are established by linguistic or religious
minority. Grant of aid cannot, however, be made
subservient to conditions which deprive the institution
of their substantive right of administering such
institutions. Suffice it to say that once Respondent 4
Institution is held to be a minority institution entitled
to the protection of Articles 26 and 30 of the
Constitution of India the right to appoint teachers of
its choice who satisfy the conditions of eligibility
prescribed for such appointments under the relevant
rules is implicit in their rights to administer such
institutions. Such rights cannot then be diluted by the
State or its functionaries insisting that the
appointment should be made only with the approval
of the Director or by following the mechanism
generally prescribed for institutions that do not enjoy
the minority status.”
 (Emphasis supplied)
37.2 Banumathi, J., however, found that the concerned institution had
never claimed to be a minority institution and had, in fact, accepted the
special constitution in terms of Rule 8 (3). It was, therefore, observed:-
“52. The fourth respondent school has accepted the
special constitution and it has not chosen to challenge
the same. As rightly held by the High Court, when the
fourth respondent school has accepted the special
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constitution and has not claimed to be a minority
institution, the appellants who are merely employees
of such an institution, cannot contend that the
institution was a minority institution entitled to
appoint its own teachers.”
37.3 Because of the disagreement, the matter was directed to be placed
before a Bench of three Judges of this Court, which has since then rendered
its decision on 25.09.201933. It was noted that Rule 32 specifically
declared that nothing in the concerned Rules would apply to an educational
institution established and administered by a minority referred to in clause
(c) of Section 2 of the West Bengal Minorities’ Commission Act, 1996,
which had, in turn, defined expression “minority” to mean a community
based on religion such as Muslim, Christian, Sikh, Buddhist, or Zorastrian
(Parsee). As regards the first question, it was, therefore, observed in
paragraphs 17 to 20 that the Institution was a minority educational
institution. It was also considered whether declaration as to status of the
minority institution by the competent authority was necessary before the
institution could claim the status of being a minority institution. Both the
issues which had led to disagreement between two Judges were thus,
squarely answered and the decision of Thakur, J. was accepted to be the
correct view on both counts.
33 Reported in 2019 SCC OnLine SC 1253 [Chandana Das (Malakar) vs. State of
West Bengal and others]
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37.4 During the course of its discussion, this Court also considered the
decision in Ahmedabad St. Xavier’s College5
 case and observed:-
“30. A reading of the aforesaid judgment would leave
no manner of doubt that if Respondent No. 4 is a
minority institution, Rule 28 of the Rules for
Management of Recognized Non-Government
Institutions (Aided and Unaided) 1969, cannot
possibly apply as there would be a serious infraction
of the right of Respondent No. 4 to administer the
institution with teachers of its choice.”
DISCUSSION AND CONCLUSION
38. In the backdrop of the decisions of this Court referred to
hereinabove, we must now consider whether the relevant provisions of the
Commission Act transgress upon the rights of a minority institution or said
provisions can be termed as “tenable as ensuring the excellence of the
institution without injuring the essence of the right”34 of a minority
institution. Right from Re: The Kerala Education Bill9 Case the issue that
has engaged the attention of this Court is about the content of rights of
minority educational institution and the extent and width of applicability of
regulations and what can be said to be permissible regulations. If the cases
in the first segment i.e. upto the decision in TMA Pai Foundation8
 are
considered, the following principles emerge:-
34 Expression used by Krishna Iyer J. in the Gandhi Faiz – e-am College case13
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A) In Re: The Kerala Education Bill9
 Case, Clause 11(2) in terms of
which the State Public Services Commission was empowered to select
candidates for appointment as teachers in Government and aided schools,
was found to be a permissible regulation. It was observed that such
provision, inter alia, was applicable to all educational institutions and was
designed to give protection and security to the teachers engaged in
rendering service to the nation.
B) The decision in Sidhajbhai Sabhai10
, however, observed, “Unlike
Art. 19, the fundamental freedom under clause (1) of Art. 30, is absolute in
terms; it is not made subject to any reasonable restrictions of the nature the
fundamental freedoms enunciated in Art. 19 may be subjected to.” It went
on to add “Regulation made in the true interests of efficiency of
instruction, discipline, health, sanitation, morality, public order and the
like may undoubtedly be imposed.” It read the decision in Re: The Kerala
Education Bill9
 case as “not an authority for the proposition submitted by
the Additional Solicitor General that all regulative measures which are not
destructive or annihilative of the character of the institution established by
the minority, provided the regulations are in the national or public interest,
are valid.” It however laid down a test - “Such regulation must satisfy a
dual test - the test of reasonableness, and the test that it is regulative of the
educational character of the institution and is conducive to making the
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institution an effective vehicle of education for the minority community or
other persons who resort to it.”
C) (i) In Ahmedabad St. Xavier’s College5
 case, while considering the
importance of teachers in an educational institution, Ray C.J. in his leading
judgment observed, “The minority institutions have the right to administer
institutions. This right implies the obligation and duty of the minority
institutions to render the very best to the students. In the right of
administration, checks and balances in the shape of regulatory measures
are required to ensure the appointment of good teachers and their
conditions of service.” It was further stated that “regulations which will
serve the interests of the teachers are of paramount importance in good
administration.”
(ii) According to Khanna, J., “The regulations have necessarily
to be made in the interest of the institution as a minority educational
institution. They have to be so designed as to make it an effective vehicle
for imparting education.”; and “Regulations made in the true interests of
efficiency of instruction, discipline, health, sanitation, morality, public
order and the like may undoubtedly be imposed.” A word of caution was
also expressed while observing, “The minority institutions cannot be
allowed to fall below the standards of excellence expected of educational
institutions, or under the guise of exclusive right of management, to decline
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to follow the general pattern. While the management must be left to them,
they may be compelled to keep in step with others.”
Khanna, J. then laid down “Balance has, therefore, to be kept
between the two objectives, that of ensuring the standard of excellence of
the institution and that of preserving the right of the minorities to establish
and administer their educational institutions. Regulations which embrace
and reconcile the two objectives can be considered to be reasonable.”;
(iii) Mathew, J. however stated, “The question whether a
regulation is in the general interest of the public has no relevance, if it
does not advance the excellence of the institution as a vehicle for general
secular education as, exhypothesi, the only permissible regulations are
those which secure the effectiveness of the purpose of the facility, namely,
the excellence of the educational institutions in respect of their
educational standards. This is the reason why this Court has time and
again said that the question whether a particular regulation is calculated
to advance the general public interest is of no consequence if it is not
conducive to the interests of the minority community and those persons
who resort to it.”
D) In Gandhi Faiz-e-am College13, Krishna Iyer, J. found “In our case
autonomy is virtually left intact and refurbishing, not restructuring, is
prescribed. The core of the right is not gouged out at all and the regulation
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is at once reasonable and calculated to promote excellence of the
institution — a text book instance of constitutional conditions.” The
regulation was, however, not found to be permissible by Mathew, J.
E) In Frank Anthony Public School17 case, it was emphasized, “The
excellence of the instruction provided by an institution would depend
directly on the excellence of the teaching staff, and in turn, that would
depend on the quality and the contentment of the teachers.”
39. We now turn to TMA Pai Foundation8
 case and consider the
principles that it laid down and whether there was reiteration of the
principles laid down in the decisions of this Court in the earlier segment or
whether there was any change or shift in the emphasis.
A) In para 50, five incidents were stated to comprise the “right to
establish and administer” and three of them were stated to be :-
(a) right to admit students;
(b) right to appoint staff – teaching and non-teaching; and
(c) right to take disciplinary action against the staff.
The discussion in the leading judgment was under various headings
and the important one being “5. To what extent can the rights of aided
private minority institutions to administer be regulated?”
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B) The earlier decisions of the Court were considered and while
considering the judgment of this Court in Sidhajbhai Sabhai10 case it was
observed:-
“If this is so, it is difficult to appreciate how the
Government can be prevented from framing
regulations that are in the national interest, as it
seems to be indicated in the passage quoted
hereinabove. Any regulation framed in the national
interest must necessarily apply to all educational
institutions, whether run by the majority or the
minority. Such a limitation must necessarily be read
into Article 30. The right under Article 30(1) cannot
be such as to override the national interest or to
prevent the Government from framing regulations in
that behalf. It is, of course, true that government
regulations cannot destroy the minority character of
the institution or make the right to establish and
administer a mere illusion; but the right under Article
30 is not so absolute as to be above the law.”
C) Thus, the principle laid down in Sidhajbhai Sabhai10 that the right
under Article 30(1) cannot be whittled down by so-called regulative
measures conceived in the interest not of the minority educational
institution, but of the public or the nation as a whole was not accepted in
TMA Pai Foundation8
. The emphasis was clear that any regulation framed
in the national interest must necessarily apply to all educational
institutions, whether run by the majority or the minority and put the matter
beyond any doubt. A caveat was however entered and it was stated that the
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Government regulations cannot destroy the minority character of the
institution.
D) The leading judgment then observed that the correct approach
would be - what was laid down by Khanna, J. in Ahmedabad St. Xavier’s
College5
 case:-
“A balance has to be kept between the two objectives
— that of ensuring the standard of excellence of the
institution, and that of preserving the right of the
minorities to establish and administer their
educational institutions. Regulations that embraced
and reconciled the two objectives could be considered
to be reasonable. This, in our view, is the correct
approach to the problem.”
E) The majority judgment then summed up the matter and stated:-
“It is difficult to comprehend that the framers of the
Constitution would have given such an absolute right
to the religious or linguistic minorities, which would
enable them to establish and administer educational
institutions in a manner so as to be in conflict with
the other Parts of the Constitution. ……..
137. …… The right under Article 30(1) has,
therefore, not been held to be absolute or above other
provisions of the law, and we reiterate the same. By
the same analogy, there is no reason why regulations
or conditions concerning, generally, the welfare of
students and teachers should not be made applicable
in order to provide a proper academic atmosphere, as
such provisions do not in any way interfere with the
right of administration or management under Article
30(1).”
It was further laid down :-
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“In other words, the essence of Article 30(1) is to
ensure equal treatment between the majority and the
minority institutions. ….. Laws of the land, including
rules and regulations, must apply equally to the
majority institutions as well as to the minority
institutions.”
40. The decision in TMA Pai Foundation8
, rendered by Eleven Judges
of this Court, thus put the matter beyond any doubt and clarified that the
right under Article 30(1) is not absolute or above the law and that
conditions concerning the welfare of the students and teachers must apply
in order to provide proper academic atmosphere, so long as the conditions
did not interfere with the right of the administration or management. What
was accepted as correct approach was the test laid down by Khanna, J. in
Ahmedabad St. Xavier’s College5
 case that a balance be kept between two
objectives - one to ensure the standard of excellence of the institution and
the other preserving the right of the minorities to establish and administer
their educational institutions. The essence of Article 30(1) was also stated
– “to ensure equal treatment between the majority and the minority
institutions” and that rules and regulations would apply equally to the
majority institutions as well as to the minority institutions.
41. The decisions of this Court rendered after TMA Pai Foundation8
case, may now be considered. 
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A) In Brahmo Samaj Education Society24
, the argument that the
appointment of teachers through College Service Commission would
maintain equal standard of education for all throughout the State was not
accepted and it was observed that the equal standards would be maintained
by insistence on qualifying tests or examinations. This Court, however, did
not consider whether the Rules in question were valid or not and left it to
the authorities to bring the rules and regulations in conformity with the
principles laid down in TMA Pai Foundation8
. It may be stated here that a
review petition has since then been allowed and the matter now stands
referred to a Constitution Bench.35
B) The decision of this Court in P.A. Inamdar25 was not directly
concerned with the rights of the minority educational institutions receiving
aid. It, however, dealt with the matter regarding admission of students in
unaided professional educational institutions and observed that the
admission of students in minority unaided professional educational
institutions must also be governed on the basis of merit. It thus did not
accept the right to admit students to be an unqualified right inhering in a
minority professional educational institution. The discussion in that case
shows that the admissions based on merit in professional educational
35 As observed in para 41 of Chandana Das – (2019) SCC Online SC 1253
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institutions were found to be in the national interest and strengthening the
national welfare.
(C) Malankara Syrian Catholic College6
 was concerned with selection
and appointment of a Principal in an unaided minority educational
institution. It was stated in para 19 that the right conferred on minorities
under Article 30 was only to ensure equality with majority and was not
intended to place the minorities in a more advantageous position vis-à-vis
the majority and that there was no reverse discrimination in favour of
minorities and that the general laws of the land relating to national interest,
would equally apply to minority institutions. It was also observed that the
Principal or Headmaster of any educational institution would be
responsible for functional efficiency of the institution and also for the
quality of education and discipline in the educational institutions as well as
maintaining the philosophy and objects of the institution. On that premise,
the right to choose a Principal was accepted to be part of the right of a
minority educational institution. It also relied upon the decision in N.
Ammad23 case which in turn had relied upon the Full Bench decision of the
Kerala High Court. It was, therefore, stated that the power to choose a
Headmaster was always recognised as an important facet of the right to the
administer the educational institutions. 
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(D) Sindhi Education Society7
 was concerned with the issue whether
instructions could be issued to fill up the posts of teachers in an unaided
minority institution in accordance with the principles and policy of
reservation. The concerned rules empowered the authority to issue such
instructions. However, a Circular was issued on 21.03.1986 exempting
minority institutions from complying with the said Rule. The subsequent
insistence through Circular of September, 1989, which did not disclose any
reason for departure was not held to be enforceable. The discussion in the
case undoubtedly deals with the issue whether the minority educational
institutions have a right to choose persons to be appointed as teachers and
could there be any regulations and could that right be in any way affected
by regulations. However, in the context of a Linguistic Minority Schools it
was observed that such institutions must have a right to select the best
teachers who not only satisfy the prescribed criteria, qualification and
eligibility but also ensure better cultural and linguistic compatibility.
Since, the candidates nominated in terms of powers conferred by Rule
64(1)(b) and the instructions issued in Circular of September, 1989 would
not satisfy such requirements and ensure compatibility, the appeal was
allowed. 
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(E) In Chandana Das31
, the principal issue was whether the concerned
institution was a minority institution or not. On that issue, there was a
disagreement between two Judges of this Court and the matter was referred
to a Bench of three Judges which accepted the view of Thakur, J. and held
that the institution was a minority educational institution33. The issue arose
in the context whether recommendations of the West Bengal School
Service Commission as regards appointments of teachers against
permanent or temporary vacancies could be validly issued in so far as a
minority educational institution was concerned. It may be stated that in
terms of Section 15 of 1997 Act, nothing in that Act would apply to “a
School established and administered by a minority whether based on
religion or language” and as such the recommendations of the West Bengal
School Service Commission could never apply to a minority institutions.
Once the view taken by Thakur, J. was accepted and it was held that the
institution was a minority institution, by virtue of said Section 15, the West
Bengal School Commission could not be competent to issue any direction.
45. Thus, going by the decision of eleven Judges of this Court in TMA
Pai Foundation8
, so long as the principles laid down therein (as culled out
in para 40 hereinabove) are satisfied, it is permissible if any regulations
seek to ensure the standard of excellence of the institutions while
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preserving the right of the minorities to establish and administer their
educational institutions.
Out of five incidents which constitute “the right to establish and
administer” an educational institution as noted in para 50 of the leading
judgment in TMA Pai Foundation8
, the right to admit students has not
been considered to be an absolute and an unqualified right. The decision in
P.A. Inamdar25 shows that in professional educational institutions or those
imparting higher education, merit based selection has been taken to be in
the interest of the nation and subserving and strengthening the national
welfare. Selection of meritorious students has been accepted to be in the
national interest. A minority institution cannot in the name of right under
Article 30(1) of the Constitution, disregard merit or merit-based selection
of students as regards professional and higher education. The right to take
disciplinary action against the staff has also not been accepted to be an
unqualified right. TMA Pai Foundation8
 itself lays down that even in an
unaided minority educational institution, a mechanism must be evolved
and appropriate Tribunal must be constituted to consider the grievances
and till then the Tribunals could be presided over by a judicial officer of
the rank of a District Judge. To that extent, there was a definite departure
from the law laid down in Ahmedabad St. Xavier’s College5
case which
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had struck down Sections 51-A and 52-A of the Gujrat University Act,
1949.
46. When it comes to the right to appoint teachers, in terms of law laid
down in TMA Pai Foundation8
a regulation framed in the national interest
must necessarily apply to all institutions regardless whether they are run by
majority or minority as the essence of Article 30(1) is to ensure equal
treatment between the majority and minority institutions. An objection can
certainly be raised if an unfavourable treatment is meted out to an
educational institution established and administered by minority. But if
ensuring of excellence in educational institutions is the underlying
principle behind a regulatory regime and the mechanism of selection of
teachers is so designed to achieve excellence in institutions, the matter may
stand on a completely different footing.
47. The test accepted in TMA Pai Foundation8
, and the balance
between two objectives can well be considered in the context of two
categories of institutions; one imparting education which is directly aimed
at or dealing with preservation and protection of the heritage, culture,
script and special characteristics of a religious or a linguistic minority;
while the second category of institutions could be those which are
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imparting what is commonly known as secular education. When it comes
to the institutions in the former category, the teachers who believe in the
religious ideology or in the special characteristics of the concerned
minority would alone be able to imbibe in the students admitted in such
educational institutions, what the minorities would like to preserve, profess
and propagate. But, if the subjects in the curriculum are purely secular in
character, that, is to say, subjects like Arithmetic, Algebra, Physics,
Chemistry or Geography, the intent must be to impart education availing
the best possible teachers. In the first category, maximum latitude may be
given to the managements of the concerned minority institutions as they
would normally be considered to be the best judges of what would help
them in protecting and preserving the heritage, culture, script or such
special features or characteristics of the concerned minorities. However,
when it comes to the second category of institutions, the governing criteria
must be to see to it that the most conducive atmosphere is put in place
where the institution achieves excellence and imparts best possible
education.
48. As laid down in the leading judgment in Ahmedabad St. Xavier’s
College5
 case, regulations which will serve the interest of the students so
also regulations which will serve the interest of the teachers are of
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paramount importance in good administration; that regulations in the
interest of efficiency of teachers are necessary for preserving harmony
amongst the institutions; and that the appointment of teachers is an
important part in educational institutions. It is quite natural that
qualitatively better teachers will ensure imparting of education of the
highest standard and will help in achieving excellence. As accepted in
Frank Anthony Public School17 case, the excellence of the instruction
provided by an institution would depend directly on the excellence of the
teaching staff and would in turn depend inter alia on the quality of
teachers.
49. Thus, if the intent is to achieve excellence in education, would it be
enough if the concerned educational institutions were to employ teachers
with minimum requisite qualifications in the name of exercise of Right
under Article 30 of the Constitution, while better qualified teachers are
available to impart education in the second category of institutions as
stated hereinabove. For example, if the qualifying percentile index for a
teacher to be appointed in an educational institution, considering his
educational qualifications, experience and research, is required to be 50,
and if teachers possessing qualifications far greater and higher than this
basic index are available, will it be proper exercise for a minority
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educational institution to select teachers with lower index disregarding
those who are better qualified? Will that subserve pursuit of excellence in
education? One can understand if under the regulatory regime candidates
who are otherwise less qualified are being nominated in the minority
educational institution and the minority educational institution is forced to
accept such less meritorious candidates in preference to better qualified
candidates. In such cases, the minority educational institution can
certainly be within its rights to agitate the issue and claim a right to choose
better teachers. But if the candidates who are selected and nominated
under the regulatory regime to impart education which is purely secular in
character, are better qualified, would the minority institution be within its
rights to reject such nomination only in the name of exercise of a right of
choice? The choice so exercised would not be in pursuit of excellence. Can
such choice then be accepted?
If the right is taken to be absolute and unqualified, then certainly such
choice must be recognised and accepted. But, if the right has not been
accepted to be absolute and unqualified and the national interest must
always permeate and apply, the excellence and merit must be the governing
criteria. Any departure from the concept of merit and excellence would not
make a minority educational institution an effective vehicle to achieve
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what has been contemplated in various decisions of this Court. Further, if
merit is not the sole and governing criteria, the minority institutions may
lag behind the non-minority institutions rather than keep in step with them.
Going back to the example given above, as against index of 50 i.e.
the minimum qualifying index, if a candidate nominated under the
regulatory regime is at an index of 85, selection by a minority educational
institution of a candidate at an index 55 may certainly be above the
minimum qualifying mark, but in preference to the one at the index of 85
who is otherwise available, the appointment of a person at the index level
of 55, will never give the requisite impetus to achieve excellence. A
meritorious candidate at the index level of 85 in the above example, if
given the requisite posting will not only help in upholding the principle of
merit but will in turn generate an atmosphere of qualitative progress and
sense of achievement commensurate with societal objectives and ideology
and such posting will, therefore, be in true national interest.
50. At the cost of repetition, it needs to be clarified that if the minority
institution has a better candidate available than the one nominated under a
regulatory regime, the institution would certainly be within its rights to
reject the nomination made by the authorities but if the person nominated
for imparting education is otherwise better qualified and suitable, any
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rejection of such nomination by the minority institution would never help
such institution in achieving excellence and as such, any such rejection
would not be within the true scope of the Right protected under Article
30(1) of the Constitution.
51. With these basic principles in mind, we may now consider the
statutory provisions under which the teachers could be nominated under
the Commission Act and see whether the concerned regulations help in
achieving excellence or whether those provisions are violative of the
Rights of the minority institutions.
52. In terms of Section 4 of the Commission Act, the Commission is to
consist of a Chairman and four Members. The Chairman of the
Commission has to be an eminent educationist having profound knowledge
in Islamic Culture and must be well versed in education with teaching
experience inter alia as a teacher of a University or as a Principal of a
college, for a period of not less than twelve years. It is true that the latter
part of Section 4(ii) speaks of an officer of the State Government not
below the rank of Joint Secretary who could also be appointed as the
Chairman of the Commission. But in our view, considering the nature of
duties that the Chairman is to discharge, even an officer of the State
Government has to be a person with profound knowledge in Islamic
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Culture. Apart from the Chairman, there are four Members who are to be
appointed in terms of Section 4(iii) of the Commission Act. Out of these
four Members, one has to be an eminent educationist having profound
knowledge in Islamic Theology and Culture, while the other two Members
must have teaching experience inter alia as a teacher of a University, or a
Principal of a College for a period of not less than ten years. The fourth
member could be a non-educationist, but he must have held the position of
eminence in public life or in Legal or Administrative Service.
Predominant composition of the Commission is thus of educationists and
two of them have to be persons with profound knowledge in Islamic
Culture and Islamic Theology. The provisions of the Commission Act are
thus specially designed for Madrasahs and Madrasah Education System in
the State. Rule 8 of the 2010 Rules stipulates fair and transparent process
of merit based selection and the statutory mechanism would ensure that
only those teachers would be selected who would be best suited to impart
education in Madrasah Education System. The State Legislature has taken
care to see that the composition of the Commission would ensure
compatability of the teachers who would be selected to impart education in
Madrasah Education System, which is also emphasized in the Statement of
Objects and Reasons.
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53. It is true that the recommendations or nominations of teachers
made by the Commission are otherwise binding on the Managing
Committees of concerned Madrasahs, but, in terms of second proviso to
Section 10 of the Commission Act, if there be any error, it is open to the
Managing Committee of the concerned Madrasah to bring it to the notice
of the Commission for removal of such error. The concept of ‘error’ as
contemplated must also include cases where the concerned Madrasah could
appoint a better qualified teacher than the one nominated by the
Commission. If any such error is pointed out, the Commission will
certainly have to rectify and remove the error. The further protection is
afforded by Section 12 of the Commission Act, under which the concerned
Madrasah could be within its rights to refuse to issue appointment letter to
the candidate recommended by the Commission if any better qualified
candidate is otherwise available with the managing committee of the
concerned Madrasah. Such refusal may also come within the expression
‘any reasonable ground’ as contemplated in Section 12(i) of the Act.
The legislature has thus taken due care that the interest of a minority
institution will always be taken care of by ensuring that i) in normal
circumstances, the best qualified and suitable candidates will be nominated
by the Commission; ii) and in case there be any error on part of the
Commission, the concerned Managing Committee could not only point out
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the error which would then be rectified by the Commission but the
Managing Committee may also be within its rights in terms of Section 12
(i) to refuse the nomination on a reasonable ground.
54. The regime put in place by the State legislature thus ensures that
the Commission comprising of experts in the field would screen the talent
all across the State; will adopt a fair selection procedure and select the best
available talent purely on merit basis; and even while nominating, the
interest of the minority institution will also be given due weightage and
taken care of. The statutory provisions thus seek to achieve ‘excellence’ in
education and also seek to promote the interest of the minority institutions.
The provisions satisfy the test as culled out in the decision of this Court in
TMA Pai Foundation8
case.
55. In our considered view going by the principles laid down in the
decision in TMA Pai Foundation case8
, the concerned provisions cannot,
therefore, be said to be transgressing the rights of the minority institutions.
The selection of the teachers and their nomination by the Commission
constituted under the provisions of the Commission Act would satisfy the
national interest as well as the interest of the minority educational
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institutions and said provisions are not violative of the rights of the
minority educational institutions.
56. The aforesaid conclusions have been arrived at by us in keeping
with the principles laid down by this Court in TMA Pai Foundation8
 case.
We are aware that in Brahmo Samaj Education Society24
, Sindhi
Education Society7
and Chandana Das (Malakar)33
, decided after TMA
Pai Foundation8
, this Court had also dealt with the question whether the
concerned authorities could validly nominate teachers to be appointed in
minority educational institutions. Brahmo Samaj Education Society24 did
not specifically deal with the question whether rules were valid or not and
left it to the authorities to bring the rules and regulations in conformity
with the principles in TMA Pai Foundation8
 case. Sindhi Education
Society7
 dealt with the issue in the context of reservation. It also found that
the teachers nominated by the concerned authorities would not be
compatible to teach in educational institutions run by linguistic minorities.
In Chandana Das (Malakar)33 the basic issue was whether the concerned
institution was a minority institution or not. Sindhi Education Society7
and Chandana Das (Malakar)33 dealt with statutory regimes which did not
have any special features or matters concerning compatibility of teachers
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which could be required going by the special characteristics of the minority
educational institutions. However, the additional feature in the present
matter shows that the composition of the Commission with special
emphasis on persons having profound knowledge in Islamic Culture and
Theology, would ensure that the special needs and requirements of
minority educational institutions will always be taken care of and thus the
present case stands on a different footing.
 We, therefore, have no hesitation in going by the test culled out in
the TMA Pai Foundation8
 and hold that the provisions of the Commission
Act are not violative of the rights of the minority educational institutions
on any count.
57. In the premises, while allowing these appeals, we set aside the
view taken by the Single Judge and the Division Bench of the High Court
and dismiss Writ Petition No.20650(W) of 2013 and other connected
matters. We also hold Sections 8, 10, 11 and 12 of the Commission Act to
be valid and constitutional.
58. In the end, we declare all nominations made by the Commission in
pursuance of the provisions of the Commission Act to be valid and
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operative. However, if after the disposal of the matters by the High Court
any appointments are made by the concerned Madarshas, such
appointments of teachers shall be deemed to be valid for all purposes. But
the Commission shall hereafter be competent to select and nominate
teachers to various Madarshas in accordance with the provisions of the
Commission Act and the Rules framed thereunder.
59. With the aforesaid observations these appeals are allowed. No
separate orders are required to be passed in respect of Writ Petitions and
contempt petitions which stand disposed of in terms of declaration as
above. No orders as to costs.
……………………..J.
[Arun Mishra]
……………………..J.
[Uday Umesh Lalit]
New Delhi;

January 6, 2020.